State of New South Wales v Church (Final)

1. [1]

   This is the final judgment determining an application brought by the State of New South Wales (“the State”) for an extended supervision order (“ESO”) of twelve months duration against the defendant, Mr Church, under ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW). Unless otherwise specified, all references to legislation in this judgment are to this Act. By its amended summons filed in court on 10 June 2021, The State seeks an ESO of one year’s duration (prayer 5).

2. [2]

   Mr Church has been subject to an interim supervision order (“ISO”) under s 27 since 19 March 2021 when he successfully completed the parole to which he was released on 19 July 2020 and his sentence for the “index offending” expired. The defendant had been in custody since his conviction on 20 September 2018 for two counts of each of the offences of driving in a manner dangerous and engaging in a police pursuit. The sentence also dealt with one count of the offence of resisting police.

3. [3]

   I conducted the preliminary hearing required by s 24(4) on 5 March 2021 and on 18 March 2021 made the first ISO: State of NSW v Church (Preliminary) [2021] NSWSC 246. I also made orders under s 24(5) appointing a forensic psychiatrist and a registered psychologist to furnish reports to the Court for the purposes of the final hearing. I made the ISO because I was satisfied that the matters alleged in the State’s supporting documentation would, if proved at the final hearing, justify the making of an ESO under s 20. I interpolate that the necessary state of satisfaction for the imposition of an ISO under s 27 is less than that required for the imposition of an ESO, especially for the purpose of s 20(d).

4. [4]

   Although the conclusions expressed in my preliminary judgment relate to the lower state of satisfaction required by s 27, I will at various times in this judgment refer to matters of primary fact by reference to my preliminary judgment, given the shortness of time available for my decision. Many of those matters are no longer in dispute. What is largely in dispute is the inferences to be drawn from those facts. Moreover, and obviously, I did not have the advantage of the opinions of the experts appointed under s 24(5) when making my preliminary decision. I will refer to that evidence in this judgment as required by s 25(3).

Issues

1. [5]

   The substantial issue at the final hearing is whether I am satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under the supervision of an ESO: s 20(d). The defendant argues that I cannot be satisfied that this threshold requirement has been met, contrary to the State’s argument. A further issue is whether, in the event I am satisfied as to s 20(d), I should otherwise exercise my discretion under s 25(1)(b) to refuse to make an ESO. Finally, in the event that I make the order sought, the parties dispute the appropriate conditions necessary to manage Mr Church’s risk under s 29, bearing in mind, inter alia, s 29(1A). Many of the conditions have been agreed (MFI “1”).

2. [6]

   There is no real dispute that the other statutory preconditions to the exercise of the power to make an ESO, as set out in s 20(a)-(c), have been made out. These are that: Mr Church was in custody serving a sentence of imprisonment, albeit on parole, when the application was filed; the application for an ESO was made in accordance with Part 2 of the Act; and, even if agreed only somewhat reluctantly, Mr Church is, for the purposes of these proceedings, a “convicted NSW terrorism activity offender”.

3. [7]

   I propose to briefly outline the reasons why those preconditions are satisfied; particularly why Mr Church satisfies the definition of a “NSW terrorism activity offender” within the meaning of s 20(c)(iii) as defined by s 10.

Statutory preconditions

1. [8]

   First, as previously stated, Mr Church is currently subject to an extension of the previous ISO made by me on the first day of the final hearing, 10 June 2021. When the application was filed, he was on parole for the index offending. The police pursuit offences are serious indictable offences. The ISO expires on 19 June 2021 in accordance with s 28(7). Secondly, I am satisfied that the application for the order has been made in accordance with Part 2 of the Act. Thirdly, when the application was brought Mr Church was in the last twelve months of his sentence, and it was supported by documentation addressing the mandatory requirements of s 25(3), and a risk assessment report as referred to in s 23(3)(b): s 23.

2. [9]

   I am also satisfied on the balance of probabilities that Mr Church is a NSW terrorism activity offender under the Act. I dealt with this issue at [11]-[27] of my preliminary judgment. The State relied upon s 10(1)(c) and the amplification of that provision by sub-s (1A). Section 10(1)(c) is in the following terms:

3. [10]

   As to s 10(1)(c)(i), the State adduced evidence of statements made on three social media accounts owned and operated by Mr Church. The emphasis of the State’s case is on two of the three accounts. These social media accounts were not under the name of Mr Church. Rather, there is evidence I find compelling that Mr Church had adopted a nom de plume, eg Shahid al Mujaahid meaning jihadist martyr, in relation to them. Indeed, since I heard the evidence at the preliminary hearing Mr Church has admitted in his interview with one of the two court appointed experts, Dr Eagle, to owning one of the accounts (Dr Eagle’s Report at [52]). When asked about the second account Mr Church said he could not recall whether he had ever posted on that account, however he did not deny it was his (Dr Eagle’s Report at [55]). Without canvassing the statements made by the accounts now, I am satisfied that the statements contained “images” associated with “violent extremism” within the meaning of s 10(1A)(a)(ii).

4. [11]

   Section 10(1A) is in the following terms:

5. [12]

   Were I not satisfied that Mr Church had previously made statements advocating support for violent extremism in accordance with s 10(1)(c) as that concept is extended by the provisions of s 10(1A), in particular sub-paragraph (a)(ii), I would have been satisfied for the reasons appearing below that Mr Church had, at least previously, a personal association or affiliation with persons advocating support for violent extremism; again within the extended meaning provided by s 10(1A)(b).

6. [13]

   My reasons for finding on the balance of probabilities that Mr Church had, at least previously, made statements advocating support for violent extremism are that I accept the matters set out at [12] to [27] of my preliminary judgment have been established on the balance of probabilities. In coming to this conclusion, I acknowledge as I did in my preliminary judgment, the force of the submissions made by Mr Stratton SC, who appeared with Ms T Hennessy and Mr J Wilcox for Mr Church, that most of the posts for which Mr Church was responsible were benign, and those of concern did not directly or overtly advocate support for violent extremism by Mr Church personally. As the expert evidence of Professor Barton and Dr Shanahan separately demonstrated, a clear understanding of the significance of the images of concern is garnered only with the assistance of deep learning and scholarship like theirs. It is doubtful that Mr Church’s understanding, I do not mean him any disrespect, rises, or is capable of rising, to that level. Nonetheless, he has in the past applied himself as best he can to acquiring an understanding of the Islamic faith to which he converted while in custody in or about 2011. From the statements made to the experts, in particular Dr Eagle, he appreciated that at least some of the images he posted extolled the virtues of the Mujahideen engaged in war-like operations in Syria and Iraq. One post called for prayers for them.

7. [14]

   As I have said, the State has proved the matters set out at [12] to [28] of my preliminary judgment to my satisfaction on the balance of probabilities. That portion of my judgment is set out below:

8. [15]

   I should say here that both Professor Barton and Dr Shanahan, again separately, and for their own reasons, wanted to express the opinion that anyone who published what I have referred to as the images of concern must have appreciated their import as statements advocating support for violent extremism. I should say that their opinion purporting to give evidence as to Mr Church’s state of mind at the time he posted each image of concern is inadmissible as not being wholly or substantially based upon the undoubted expertise of either of them. But given Mr Church’s “admissions” and the consideration that there is now no real dispute about this issue, I infer that Mr Church appreciated in making the posts of concern that he was advocating support for violent extremism in the context of the conflict involving the so-called Islamic State in Syria and Iraq.

The unacceptable risk issue

1. [16]

   In my preliminary judgment, having reviewed the evidence referable to the s 25(2) and (3) considerations, I concluded (at [82]) in accordance with s 27:

2. [17]

   The matters alleged in the State’s documentation, at that time, that then seemed to me to be particularly relevant were:

3. [18]

   I identified the relevant risk in the following terms:

4. [19]

   As will appear, not all of these matters survived the final hearing.

Additional evidence led at the final hearing

1. [20]

   In arriving at my preliminary conclusions, I had regard to such of the mandatory considerations established by s 25(3) as were touched upon by the State’s documentation. Having regard to s 23(3), this was virtually all of them. I also bore firmly in mind that the safety of the community is the paramount consideration: s 25(2). I had regard to the following:

2. [21]

   With the exception of acceptance of Dr Sweller’s opinion and the relevance of the history of suicide ideation and self-harm, I am satisfied that my provisional findings have been proved on the balance of probabilities. I have rejected Dr Sweller’s opinion because I prefer the opinions of the court appointed experts, Dr Eagle and Dr Seidler, of which I now have the benefit. I accept Mr Stratton’s submission that Dr Sweller’s opinions are deprived of the probative value they might otherwise be afforded by her assumption that there had been no positive changes in Mr Church since his conviction for the index offending. In fairness, Dr Sweller took that approach because Mr Church declined to cooperate with her assessment, refused to be interviewed and she was left in the position of having to undertake a “desktop” assessment on the papers.

3. [22]

   My assessment of the weight I should afford Dr Sweller’s opinion in this case should in no way be taken as to calling her expertise into question. She is obviously very highly qualified and well positioned to express opinions of the type she proffered in this case. Moreover, Mr Church’s choice not to participate is a factor which could in some circumstances leave him open to the drawing of a Jones v Dunkel inference making it easier to accept Dr Sweller’s views. These are civil not criminal proceedings. On the other hand, as directed, Mr Church did attend the examinations with Dr Eagle and Dr Seidler, and from their evidence I infer that he was fully cooperative and understandably anxious to be seen as putting his best foot forward.

4. [23]

   It is not necessary for me to refer in detail to all of the additional evidence read or led at the final hearing. I will refer to those aspects of it which I find salient. In his affidavit of 18 May 2021, Shane Bagley, a senior official with the Terrorism High Risk Offender Applications Unit, states (at [20]):

5. [24]

   In his affidavit of 31 May 2021, Imam Ahmed Kilani, a prison chaplain employed the Islamic Council of New South Wales to provide pastoral support to Muslim inmates in New South Wales correctional centres, states that he has been involved with government and associated agencies on issues of counter-terrorism and countering violent extremism to assist authorities in developing plans for disengagement of inmates from religious extremism. He has been involved as the Religious Support Officer for the Proactive Integration Support Model, a CSNSW program for facilitating the de-radicalisation, disengagement and reintegration of inmates either charged with terrorism offences or deemed at risk of engaging in Islamic extremism.

6. [25]

   Imam Kilani first met Mr Church in 2018 at Long Bay Correctional Complex. He visited once a fortnight to minister to 10 or 15 men and Mr Church attended his sessions. Because his work as a chaplain took him to various correctional centres he was not always able to attend the Long Bay meetings. He trained some of the men to lead the sessions in his absence, including Mr Church. I should say that Mr Casselden SC, who appeared with Ms Palmer and Mr Varley for the State, argued that I should give little weight to expressions of opinion by Imam Kilani about the nature of Mr Church’s religious views. However, I think given his education, training and experience, particularly his involvement in counter-extremism programs, he is well qualified to express opinions about the nature of Mr Church’s religious views, at least so far as they were expressed to him. Imam Kilani considers Mr Church to be a moderate Muslim. He is very comfortable with Mr Church’s way of thinking from an Islamic point of view.

7. [26]

   From time to time Imam Kilani mentored Mr Church on a one-on-one basis discussing Theology. He states that he “wouldn’t risk compromising the security of the gaol, having someone teach misguided teachings of Islam and harming [Imam Kilani’s] own professional reputation” (affidavit, at [11]).

8. [27]

   He still has contact with Mr Church in the community, mainly by telephone. He regards Mr Church as someone who takes his faith seriously. He has seen nothing that raises alarm bells with him “regarding teachers, books or scriptures that he has been reading” (affidavit, paragraph 15).

9. [28]

   I regard Imam Kilani’s opinion to be worthy of weight.

10. [29]

    Mr Church’s brother Jesse has also provided an affidavit, affirmed on 1 June 2021. He is a resident of Hamilton, New Zealand. He affirms that he is a committed Christian attending church every Sunday and during the week. He states that he was initially concerned when he found out Mr Church had converted to Islam. He states that Mr Church has told him that killing is not part of the Islamic faith and that terrorism is contrary to the Qu’ran. He regards his brother’s faith as “genuine”. He stated (at affidavit, paragraph 14):

11. [30]

    An affidavit of 1 June 2021 from Mr Church’s leading hand at work, Raymond Karl Tauthi Bluett, was also read. He states that he is Mr Church’s direct supervisor. He said that Mr Church is a hard worker who follows directions and is punctual. He also points out that the nature of the work requires flexibility in terms of hours and travel. He said that workers in the industry must be prepared and able to be in a position to start a new job at short notice. “You just have to follow the work” (affidavit, paragraph 5).

12. [31]

    I have also received a report of from Billel Rababi, psychologist whose been treating Mr Church on referral from his general practitioner since August 2020. No psychotic symptoms were identified, although there was evidence of anxiety and depressive symptoms during the treatment sessions, especially when discussing Mr Church’s childhood trauma and the poor decisions he has made during his adult life. Although Mr Church displays symptoms of “depression, anxiety and stress” this may not be clinically significant as his scores did not register on the Depression, Anxiety and Stress Scale (DASS – 21). Perhaps of some concern, Mr Church denied suicide attempts or self-harm in the past which is inconsistent with other contemporaneous material. I interpolate that he downplayed these aspects of his history in consultation with the court appointed experts, particularly Dr Seidler, who challenged him on the basis of the historical clinical material with which he had been provided.

Section 25(3)(a), evidence of court appointed experts

1. [32]

   Dr Kerri Eagle is a Consultant Forensic Psychiatrist. Her expertise was not in question. She interviewed Mr Church for a period of 2 hours and 40 minutes on 22 April 2021 and produced a comprehensive report dated 3 May 2021.

2. [33]

   Dr Eagle was of the opinion that Mr Church did not display any signs or symptoms consistent with a major mental illness. Like Dr Elliot, she was of the view that transient psychotic symptoms, of which Mr Church had complained from time to time, were related to psychotic episodes brought about by illicit substance abuse. She diagnosed a substance use disorder which Dr Eagle regarded as being in remission while Mr Church was under supervision. This circumstance, as I have pointed out above, appears to be corroborated by other evidence.

3. [34]

   Although Mr Church suffered no major mental illness, again, like Dr Elliot, Dr Eagle was of the opinion that Mr Church met the criteria for an Antisocial Personality Disorder. She considered that there was evidence of behaviours indicating a Conduct Disorder prior to the age of 15 years including juvenile offending. Such conduct disorders are often a precursor to the development of an Antisocial Personality Disorder.

4. [35]

   For risk assessment purposes, Dr Eagle, like Dr Sweller and Dr Siedler, applied the VERA – 2R, which Dr Eagle described as a structured professional judgment tool. The expert explained that violent extremism or terrorism is rare, involving an insufficient cohort to support statistical or actuarial diagnostic tools.

5. [36]

   After a thorough review of the material, and a close analysis of it and the content of her clinical consultation with Mr Church, Dr Eagle expressed the following opinion (at [219.3.2 – 3]):

6. [37]

   It will be apparent that Dr Eagle’s formulation of the risk is quite different from my provisional assessment of the risk which the State’s supporting documentation was capable of supporting. In oral evidence in answer to questions asked by me she confirmed the following (at 64.22 - 27T):

7. [38]

   Given Dr Eagle’s opinion, it is necessary for me to refer by way of interpolation to part of Mr Church’s criminal history I omitted from my analysis above which concentrated upon his history of violent crime. On 2 July 2019 while on remand for the index offending, Mr Church was charged with a number of offences relating to participation in a criminal group for which he was sentenced to a fixed term of imprisonment of 4 months to be served concurrently with the sentence for the index offending. He was charged with a co-accused named Munzer Wraideh. A large number of companies were registered through a website utilising a number of forged credit cards in a false name. This offending occurred in January and February 2018 which is at the end of the period of his social media posting activities. Mr Church’s name and date of birth were used in relation to ten of the companies and another co-accused Ramialel Namboulsi, the partner of Mr Wraideh, was utilised for another nine companies. Attempts were made by all three co-accused and another person to open a business bank account relating to each of the companies. Among them, from the police facts, Mr Wraideh appears to have been the “master-mind”. He was careful that his name was not associated with the registration of any company. It is also apparent from the police facts that he may have been receiving instructions or directions from another unknown person through the instant messaging app, “WhatsApp”.

8. [39]

   Returning to Dr Eagle’s oral evidence, in cross-examination by Mr Stratton, Dr Eagle said that Mr Church’s history of self-harm with suicide ideation did not increase his risk of a serious terrorism offence. And she agreed that the last posting of any material advocating support for violent extremism was in about February 2018 (58.21 - .35T).

9. [40]

   She also agreed that she regarded the associations referred to below (at [61]) as a “risk indicator”. She accepted that Mr Church had maintained that he had severed ties with those people. She was asked the following at (59.20T).

10. [41]

    Notwithstanding the pro-social changes Mr Church had made in his life, Dr Eagle disagreed that the relevant risk “is either non-existent or negligible” (61.35 - 40T).

11. [42]

    Dr Eagle was not prepared to say other than she regarded the risk as more than negligible or non-existent. She was not prepared to otherwise quantify it. She regarded his recent behaviour as reassuring, but she considered the period of his positive behaviour as being insufficient “to demonstrate the capacity for sustained independence, employment, stable relationships, and those types of factors. And the avoidance of problematic influence, problematic ideas” (62.15T).

12. [43]

    In Dr Eagle’s view a longer period of continued supervision was required.

13. [44]

    Dr Seidler, like Dr Eagle, is a highly qualified expert in this field, although her professional status is that of clinical and forensic psychologist. She interviewed Mr Church for a period of 3 hours in her rooms on 26 April 2021, producing a detailed report of 3 May 2021. She too set out a comprehensive review of the relevant material with which she was supplied, and also administered the VERA – 2R as a structured professional judgment risk assessment tool. She too, acknowledged the limitations of VERA – 2R, but regarded it as providing “a meaningful analysis of an individual’s possible risk” ([149]). She pointed out (as had Dr Eagle) (at [151]):

14. [45]

    She expressed the opinion “that Mr Church poses a Low-Moderate risk of future violent extremism” ([156]). She said:

15. [46]

    Dr Seidler did not formulate the risk she assessed in terms of how it may manifest itself or materialise. I asked her about this when she gave oral evidence (80.10T). She said at (80.25 - 30T):

16. [47]

    Dr Seidler also said at (81.5 - 45T):

17. [48]

    She did not believe that Mr Church had the intellectual capacity, because of his low verbal intelligence, to be involved in planning or at the organisational level of a serious terrorism offence (82.5 - .10T). “He would be muscle”.

18. [49]

    In re-examination, Dr Seidler said that on the results of the test administered by her Mr Church “comes up as being someone [who is] trying to … impress positively” (83.10T).

19. [50]

    I have referred to much of the opinions of Professor Barton and Dr Shanahan above. It remains necessary to say something of their oral evidence. Neither moved much from their evidence in chief as contained in their reports.

20. [51]

    Professor Barton was called to give oral evidence by audio-visual link from Melbourne. In cross-examination Professor Barton accepted that it would be very unlikely that Mr Church would be literate in formal Arabic and that he would have a very limited appreciation of Arabic script, I inferred, depicted in the material he had posted to social media (13.30 - 40T). Professor Barton pointed out that there are about 1.9 billion adherents of the Islamic faith across the world speaking multiple languages. His particular concern was whether there was any association with violent extremism in the material he was asked to consider.

21. [52]

    When asked about the 22 books seized from Mr Church’s cell, Professor Barton agreed that so far as he could tell only one book was of concern. It was entitled “The Reality of Shiism” and was a sectarian denunciation in hateful terms of Shia Muslims from a Sunni extremist position (15.7T). However, the work was not directly focused on Salafi-jihadi violent extremism. But it may be used to justify extremist violence against Shia Muslims (15.15T). It did not discuss jihad, “So it, by itself, is not by itself advocating Salafi-jihadi violent extremism” (15.27T). He agreed that, “the other 20 books” did not advocate for violent extremism. He said, “These are not works advocating Salafi-jihadism” (16.8T).

22. [53]

    Although Professor Barton would not accept that the particular social media posts I have analysed above were unrelated to advocacy for Salafi-jihadism, he did agree that the last of them he was asked to consider was dated February 2018 (30.5T), with none since.

23. [54]

    Dr Shanahan was called to give oral evidence and his four reports between 6 January 2021 and 14 May 2021 were tendered. In cross-examination, it was put to Dr Shanahan that of the 10 social media posts of Mr Church he was asked to consider only two caused him concern. Dr Shanahan thought there were four (36.10 - .20T).

24. [55]

    The impression I formed from the cross-examination was that Dr Shanahan accepted that the literal text of the images posted did not expressly advocate terrorism or violent extremism. His thesis, based on his understanding of these matters, taking each image as a whole and all of them together if published without any counter or disapproval, was that the person making the post is “implicitly advocating the views of the original author” (44.10T - .15T) of the whole image. Importantly, he said the “Qu’ran is an interpretive text” (50.19T - .30T).

Does Mr Church pose an unacceptable risk?

1. [56]

   As Mr Casselden submits, it is important that I direct myself by reference to the decision of the Court of Appeal in the State of New South v Naaman (No 2) [2018] NSWCA 328; 276 A Crim R 30 at [29], which I set out in full as follows:

2. [57]

   I bear in mind that the evaluation required by the statute requires is to be “forward-looking”; it is not determined by “what has happened in the past”. Moreover, the usual civil standard of proof is elevated or enhanced by the expression “a high degree of probability”. The fifth principle, that a slim probability of an unsupervised defendant committing a terrorist act may be unacceptable having regard the possible consequences of the act even if the probability of the risk eventuating is low, must be considered in the light of the decision of the High Court of Australia in Minister for Home Affairs v Benbrika [2021] HCA 4; 95 ALJR 166 at [46]-[47], that for a risk to be unacceptable the contemplated offence involved must be of a kind that can be seen to pose a real threat of harm to the community. In the same case Gageler J said (at [79]):

3. [58]

   I accept of course that the curtailment of Mr Church’s liberty proposed by the State by way of an ESO of one year’s duration is irrelevant to the assessment of whether he poses an unacceptable risk of committing a serious terrorism offence if not kept under that supervision: Lynn v Sate of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44]. However, the statements from Benbrika well illustrate the content of the phrase, “unacceptable risk”. Benbrika is concerned with cognate Commonwealth legislation, albeit focussed on continuing detention orders.

4. [59]

   It remains that the most important matters informing the evaluation of future risk in this case are those I set out at [79] of my preliminary judgment and summarised at [16] above. They require considerable modification in light of the additional evidence led at the final hearing. Certainly, the evidence of the court appointed experts is to the effect that past history of suicidal ideation and self-harm does not inform the risk of future engagement in a serious terrorism offence. Likewise, for the reasons I have given, I prefer the evidence of Dr Eagle and Dr Seidler to that of Dr Sweller. I was also impressed with the evidence I have recounted at [23]-[31] above from Mr Bagley, Imam Kilani and Mr Church’s brother about the positive effect of his Islamic faith upon him, the moderate nature of his religious beliefs currently and his complete compliance with his recent supervision under both his parole and the ISO. If I may say with respect, Imam Kilani’s opinion about Mr Church’s beliefs are likely to be more reliable than the extrapolations of Professor Barton and Dr Shanahan about Mr Church’s state of mind, however impressive their opinions were otherwise. So far as good conduct on supervision is concerned, I acknowledge Dr Eagle’s view that greater time under supervision may allow greater confidence in future prospects.

5. [60]

   All of the matters of concern I have identified as relevant to risk relate to past conduct. Future probabilities may always be informed past conduct, but as I have said and on the authority of Naaman (No 2), past conduct is by no means determinative.

6. [61]

   I remain concerned about the social media posts which I accept in the ways I have set out above, and on the basis of that part of the opinions of Professor Barton and Dr Shanahan I do accept, advocated support for violent extremism. I remain concerned too with Mr Church’s associations within s 10(1A)(b) with persons who have advocated support for violent extremism. So far as the latter is concerned, the evidence in that regard is set out at [74] – [78] of my preliminary judgment. As this evidence has not changed, I set it out again:

7. [62]

   The weight to be afforded to the social media posts is somewhat diminished by the consideration that the last of them was posted more than three years ago. Likewise, none of the associations of concern are current as has been confirmed in the affidavit of Mr Bagley. Indeed, it is apparent that they are mostly now out of circulation and it seems unlikely that Mr Church will have any further association with them whatsoever. My overall impression of these matters is that Mr Church is a person who may have stood on the brink and contemplated the abyss but chose to step back and walk away.

8. [63]

   Although I was greatly impressed by Dr Eagle’s evidence and her expertise, I confess that I found her formulation of the risk somewhat surprising. Mr Church does not strike me as a person likely to be involved in planning, organising or financing terrorism offences to be committed by others. I am not persuaded that the evidence available in relation to the participation in criminal group offending casts him in any way as the brain behind those matters. Mr Wraideh seems to have been in that position and even he seems to have been under the control or direction of an unknown person or persons. It seems Mr Church was a foot soldier in that enterprise. This offending, which is entirely out of character with his previous offending, was dealt with comparative leniency in the Local Court having regard to his poor criminal record, which says something about how the seriousness of his part in the offending was assessed.

9. [64]

   I acknowledge the force of Dr Eagle’s opinion that, perhaps the apparent turn-around in Mr Church’s life is not sufficiently well established to be confident that he is a reformed character. But this concern falls a long way short of satisfaction to a high degree of probability that he poses an unacceptable risk.

10. [65]

    Dr Seidler considered the risk low to moderate. However, for what it is worth, she was not of the view that continued supervision was justified. She was, for obvious reasons, reluctant to buy in to prognosticating about the sequence of events which may lead to regression on the part of Mr Church to the point where he would commit a serious terrorism offence. She regarded that prospect as possibly occurring, if at all, in the longer term as a result of the loss of his current pro-social supports, not only his family supports, but also his stable employment.

11. [66]

    What is clear is that neither court appointed expert embraced the formulation of risk I found the State’s documentation capable of proving for the purpose of my preliminary judgment. I feel compelled to forsake it.

12. [67]

    Although, I repeat, I have some concerns based upon the factors I have identified, I am not satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO.

13. [68]

    In making this decision, I have had regard to the other s 25 considerations as summarised above, including the paramount consideration of the safety of the community, although I acknowledge they are not mandatory in relation to this question.

14. [69]

    It follows that the s 20(d) test is not satisfied and under s 25(1)(b) I must dismiss the State’s application.

Other matters

1. [70]

   There is little point in making contingent findings on the basis that, contrary to my decision, s 20(d) had been satisfied. Obviously, were the risk unacceptable there is limited scope for declining to make an order unless the sixth principle established in Naaman (No 2) is engaged. In the circumstances of this case it could well have been counter-productive to impose an ESO on Mr Church, even for only one year, given the excellent progress he has made to date.

2. [71]

   There is even less utility in dealing with the question of the conditions appropriate to an ESO had I been persuaded otherwise. Those matters must address the risk identified and formulated under s 20(d). The parties agreed on most conditions as recorded in MFI 1, which I have placed with the papers. I would have continued the regime which I established for the purpose of the ISO, albeit with some adjustments. For instance, having regard to Dr Eagle’s opinion, I probably would have dispensed with the curfew, notwithstanding that Corrective Services and the police regard it as a virtually essential condition. His movements would still have been required to be documented otherwise.

Orders

1. [72]

   For these reasons, my orders are:

   1. (1)

      Under s 25(1)(b) Terrorism (High Risk Offenders) Act 2017 (NSW) the State’s application for an extended supervision order is dismissed;

   2. (2)

      The interim supervision order extended to expire on 19 June 2021 is dissolved;

   3. (3)

      Third parties may not access the court file without the prior leave of a judge of the Court which may not be granted except on first extending to the parties a reasonable opportunity to be heard;

   4. (4)

      Liberty to the defendant to apply in respect of costs exercisable by notice of motion filed and served within 14 days.