State of New South Wales v Naaman (No 2)

1. [1]

   THE COURT: The State of New South Wales has appealed from the dismissal by the primary judge (Fagan J) of its application for an extended supervision order pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). His Honour’s reserved judgment followed a hearing over two days in which various lay and expert witnesses gave evidence, although the respondent, Mr Mohamed Naaman, did not: State of New South Wales v Naaman (Final) [2018] NSWSC 1635.

2. [2]

   The State’s notice of appeal was filed on 22 November 2018. The parties have co-operated with a view to the appeal being readied for hearing with a high degree of urgency, although with the consequence that all counsel save junior counsel for the respondent had not appeared at first instance. The Court is grateful for the assistance from both sides by way of written and oral submissions. The expedition has enabled the resolution of the State’s appeal before the expiry of the existing interim supervision order on 21 December 2018.

3. [3]

   By way of overview, the respondent has committed a long list of offences, including offences involving violence. He has spent most of his adult life in prison. The most serious instances of violence have been directed to police officers and corrective service officers acting in the course of their duty. He has also made threats of violence, including of bombing a correctional centre. He has expressed views supportive of the Sunni Islamic cause, and indeed, in breach of his parole, travelled to the Middle East (although the primary judge noted at [73] that there was no evidence that he proceeded to fight in Syria or attempted to do so). However, he is also a person who is cognitively impaired, who has been diagnosed as a likely schizophrenic, and who suffers from an anti-social personality disorder and a substance use disorder, the consequence of many years of use of illegal drugs. We share the view expressed by the primary judge that, regrettably, it is likely that the respondent will offend again, and that when apprehended, he may resist arrest, including violently.

4. [4]

   However, we also share the view reached by the primary judge that the State has not shown that there is an unacceptable risk of the respondent committing a serious terrorism offence if no supervision order is made. A person only commits a serious terrorism offence if he or she (a) acts or threatens to act in a way which causes serious harm or damage, (b) with the intention of advancing a political, religious or ideological cause, and (c) with the intention of coercing or influencing by intimidation a local or foreign government or intimidating the public or a section of the public. Although the first condition is satisfied, it has not been shown that there is any real risk of the respondent acting or threatening to act with either requisite intention, let alone both. His history of violence to date, so far as the evidence discloses, has been reactionary and unpremeditated, and not, so far as the evidence indicates, engaged in with the intention of advancing a political, religious or ideological cause.

5. [5]

   For the reasons which follow, we would dismiss the State’s appeal.

Nature of the State’s appeal

1. [6]

   The State’s appeal is as of right, pursuant to s 53 of the Act. It was common ground at the bar table that the State needed to establish error. That accords with what was said in State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [16]–[17] and [126], in respect of the Crimes (High Risk Offenders) Act 2006 (NSW). The same question was the subject of further consideration by Basten JA in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [83]–[84], another decision under the Crimes (High Risk Offenders) Act 2006 (NSW). Under that statute, there was a separate right of appeal, but it was conferred in different terms from s 53. Significantly, s 22 of the Crimes (High Risk Offenders) Act made no provision as to whether s 75A of the Supreme Court Act 1970 (NSW) applied, and also provided that it did not limit any right of appeal that might exist apart from that Act. Those matters were regarded by Basten JA as being of some significance in concluding that the appeal was by way of rehearing.

2. [7]

   The regime established by the Act is different in both respects. Section 53(2) provides that “the appeal is to be by way of a rehearing under section 75A of the Supreme Court Act 1970”. Section 53(7) of the Act expressly displaces the ordinary right of appeal from judgments or orders of the Supreme Court pursuant to s 101 of the Supreme Court Act 1970 (NSW), one consequence being that neither party requires leave to appeal. It is plain from s 53(2) of the Act that the appeal is to be by way of a rehearing under s 75A.

3. [8]

   Not so long ago, the description of an appeal as “by way of rehearing” was described as “not necessarily [having] a fixed or settled meaning” and as “best used only when required by a statutory text”: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [21]. What is of present relevance, however, is that the statutory text requires the application of the principles established in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. This matters because, subsequent to the decision of the primary judge, the Act has been changed materially, including as to the critical and contested provisions determined by the primary judge and raised on appeal. Some of those changes will be indicated below.

4. [9]

   That does not relieve the State from its obligation to establish error. The proceeding in this Court is not a hearing de novo. Rather, the position is as stated by Gaudron, Gummow, McHugh and Hayne JJ in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]:

5. [10]

   Earlier this year, the position was reviewed by Gageler J in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at [30]–[49]. Subject always to particular statutory provisions, his Honour described the nature of an appeal by way of rehearing at [31]:

6. [11]

   Gageler J subsequently explained that the significance of Warren v Coombes was to “despatch” the notion of “judicial restraint” with regard to the appellate review of evaluative conclusions reached by the trial judge. A similar position had been adopted by this Court in Costa v The Public Trustee of NSW [2008] NSWCA 223.

7. [12]

   His Honour concluded at [49]:

8. [13]

   Substantially the same point was made by Edelman J at [150]. The approach there stated, turning on whether the conclusion demands a uniquely correct answer, was endorsed by a unanimous High Court constituted by seven Justices in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 at [61]:

9. [14]

   If this Court reached the stage of exercising a discretion under the Act, it would do so on the basis of the provisions presently in force. These now include, by dint of the new s 29(1A) of the Act, default conditions of an extended supervision order which must be included unless the Court “orders differently”.

10. [15]

    The primary judge did not reach the stage of exercising a discretion to make an order on particular terms. His Honour concluded that a precondition to the exercise of the power was not made out. Either the preconditions to the exercise of the power to make an extended supervision order are, or are not, made out. The question is binary, and the standard is one of correctness. Naturally, in assessing the appeal in a case such as this where the primary judge had the benefit of oral testimony, the limitations of appellate review are to be borne in mind.

Overview of the Act

1. [16]

   The Act is in some respects similar to the regime established by the Crimes (High Risk Offenders) Act 2006 (NSW) but in other respects, notably, in its picking up of the broad definition of “terrorist act” in Part 5.3 of the Criminal Code (Cth) (“the Code”), is significantly different.

2. [17]

   Broadly speaking, the Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order. There is no necessary inconsistency between the interim orders made in August and September 2018 and the dismissal of the State’s application for an extended supervision order following a final hearing by the primary judge.

3. [18]

   Section 20 of the Act is as follows:

4. [19]

   Section 21 provides that for the purposes of this Part of the Act, the Court is not required to determine that the risk of an eligible offender committing a terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence.

5. [20]

   There are thus four preconditions, in pars (a), (b), (c) and (d) of s 20 of the Act, to be satisfied before the discretionary power to make an Extended Supervision Order is enlivened. In the present litigation, there was and is no dispute that pars (a) and (b) were satisfied. The primary judge considered that the State had not made out par (d) and accordingly rejected the application; this is the main point on appeal. The primary judge also found that the respondent was a “convicted NSW terrorism activity offender” within the meaning of s 20(c)(iii) (which was the only subparagraph of par (c) which the State contended was applicable), but did so “upon a very narrow and particular basis”, which his Honour considered was material to the fourth prerequisite in par (d): see at [73]. This was relevant both to ground 2(b) of the State’s appeal and also to the respondent’s notice of contention.

6. [21]

   The preconditions in both of pars (c) and (d) turn on the definition of “terrorist act”, and, in order to explain the issues arising on the appeal and the notice of contention, it is necessary to address those paragraphs.

7. [22]

   The definition of a “convicted NSW terrorism activity offender” in s 10 of the Act must be approached with caution. In particular, it will apply irrespective of whether a person has been convicted of an offence connected with terrorism.

8. [23]

   In its present form, following amendments made by the Community Protection Legislation Amendment Act 2018 (NSW) with effect from 28 November 2018, the section provides:

9. [24]

   It was not suggested that the respondent had been subject to a control order or has at any time been a member of a terrorist organisation, so the criteria in subs (1)(c) were relied on.

10. [25]

    At the time the matter was heard and determined by the primary judge, s 10 did not include subs (1A), while subs (1)(c) was somewhat narrower:

11. [26]

    It will not be necessary, in order to resolve this appeal, to determine the proper construction of this definition, in its current or superseded forms. On one view, the fact that, some seventeen years ago, the respondent placed a poster of Osama Bin Laden on his cell wall now mandates (by reason of subs (1A)(a)(ii)) that because the respondent was in 2018 serving a sentence of imprisonment for a NSW indictable offence, he was a “convicted NSW terrorism activity offender”.

12. [27]

    Under the superseded form of the definition, regard needed to be had to the definition of “terrorist acts”. Under the current form, it is also possible to engage the definition by advocacy for “violent extremism”. There was no suggestion in the present appeal that the respondent had done, or there was a risk of him doing in the future, anything that might engage “violent extremism” that was outside the very broadly defined term “terrorist act”. Once again this change may be passed over for present purposes.

13. [28]

    The critical provision for the purposes of the appeal is s 20(d). The primary judge did not reach the state of satisfaction required by that paragraph and accordingly dismissed the State’s application.

14. [29]

    Paragraph (d) is a complicated provision, and in light of the State’s submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately.

    1. (1)

       First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction.

    2. (2)

       Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur.

    3. (3)

       Thirdly, par (d) requires the Court to be satisfied to a “high degree of probability” of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court’s state of satisfaction to be “to a high degree of probability”.

    4. (4)

       Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is “not kept under supervision under the order” which the State is seeking. On that premise, the Court is then required to determine the “risk of committing a serious terrorism offence”. It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct.

    5. (5)

       Fifthly, the Court is then to determine whether that risk is or is not “unacceptable”. It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not “unacceptable” is not otherwise defined in the Act.

    6. (6)

       Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.

15. [30]

    Section 4 of the Act defines a “serious terrorism offence” to mean “an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”. The State focussed attention on the offence created by s 101.1: “A person commits an offence if the person engages in a terrorist act”, for which the maximum penalty is life imprisonment. Other offences with less severe maximum penalties, but which still carry penalties of 7 or more years of imprisonment, relate to steps being taken in preparation for a terrorist act.

16. [31]

    Thus the critical definition for both of the prerequisites in ss 20(c) and 20(d) is “terrorist act”. The Code in s 100.1(1) defines that term as follows:

17. [32]

    This definition requires reference to s 100.1(2), (3) and (4) which provide as follows:

18. [33]

    It will be seen that while “an action” or “threat of action” is defined to mean a “terrorist act”, only pars (b) and (c), and not par (a), are framed in terms squarely picking up both action and the threat of action. That raises a threshold question as to the operation of par (a) in cases where the act is merely the threat of action, as opposed to action itself.

19. [34]

    Although par (a) does not refer to “threat of action”, it defines the parameters of “action”, whether actual or threatened. That construction allows the application of subss (2) and (3) in every case. (To read par (a) as confined to actions rather than threats would limit the application of subs (2) and (3).) That construction accords with what was said by Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44]:

20. [35]

    It may be noted that the same approach was adopted in R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236 at [49]. Accordingly, for the purpose of assessing whether the threat of action is a “terrorist act”, one asks whether the threatened action falls within subs (2) and does not fall within subs (3). Further, if action or threat of action is to be a terrorist act, it must also satisfy both of pars (b) and (c), and so the action must be done or the threat made with the intentions identified in those paragraphs.

21. [36]

    No submissions were addressed to the other provisions of the Code dealing with intention. Section 5.2 of the Code provides:

22. [37]

    Section 7.3 makes provision for mental impairment, which is defined to include “intellectual disability”, “mental illness” and “severe personality disorder”, all of which may be applicable to the respondent. Section 7.3 however is expressed in terms of the circumstances when a person is not criminally responsible for an offence. There may be questions of some significance in the way in which the Act picks up the definition of “terrorist act” with its double requirement of intention, if it is sought to be applied, as here, to a person with mental illness. No submissions were made on the topic, and, in order to resolve this appeal, it will not be necessary to explore that matter.

23. [38]

    Finally, it may be noted that the Act also authorises applications for continuing detention orders. The regime is broadly similar, save principally for the fact that the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under the order (see s 34(1)(d)). The State does not seek a continuing detention order against the respondent.

The respondent’s violence and threat of violence

1. [39]

   Section 20(d) turns upon there being an unacceptable risk of the respondent committing a serious terrorism offence if not kept under supervision. The State’s application was made pursuant to a summons which did not particularise the serious terrorism offence upon which it relied. Nor were separate particulars provided. However, in its oral and written submissions in this Court the State focussed upon three offences involving violence committed by the respondent and six occasions on which there was reference to advancing a political, religious or ideological cause. Those matters are summarised below.

2. [40]

   First, in November 2002, the respondent stole the keys of a tradesman’s vehicle and drove it away. Police were alerted and followed it. The respondent abandoned the vehicle and sought to escape on foot. When apprehended by a constable, the respondent resisted arrest and seized the officer’s service pistol from its holster. The pistol slid across the ground and there was evidence that at one stage the respondent had managed to place his finger on the trigger. The stolen vehicle contained valuables stolen by the respondent in a handbag snatch.

3. [41]

   Secondly, in late July 2013, the respondent committed the offence of breaking and entering. He was arrested in August 2013 at his parents’ home. When approached by police, the respondent picked up a large knife or skewer, no shorter than 35cm in length. The two apprehending police officers told the respondent to drop the knife but for a period of some 10 seconds the respondent brandished and thrust the knife in their direction. He only dropped the knife after police threatened to subdue him with a taser.

4. [42]

   Thirdly, while in custody, on 31 January 2015, he threatened correctional centre officers with a razor blade. The primary judge described this incident at [35] as follows:

5. [43]

   The State identified six matters, in chronological order, which were relied upon for the purposes of establishing “the conduct and statements of concern in the context of the risk of committing a serious terrorism offence” (transcript, 11 December 2018, p 24). The six matters were identified in chronological order, and the first four matters may be summarised briefly:

   1. (1)

      First, in December 2001, the respondent placed a portrait of Osama Bin Laden on the wall of his cell.

   2. (2)

      Secondly, on 27 August 2008, the respondent is recorded by a case officer as saying “that he would go to Syria and become a suicide bomber, then stated that he was joking”.

   3. (3)

      Thirdly, on 30 January 2013, while in custody, a telephone conversation between the respondent and his solicitor was recorded, which included a request for a copy of the Quran on CD as read by Anwar Al-Aulaqi, and another CD entitled “The Life After Death”. The respondent said that Al-Aulaqi “speaks about life after death, and what will happen to the deceased in the grave and also speaks about what is going to happen to the human spirit after death”. The respondent told his sister that “Al-Aulaqi was killed by the Americans in Yemen last year or the year before”.

   4. (4)

      Fourthly, on 11 September 2014, again while in custody, the respondent was reviewed for his psychiatric and pain relief medications. A nurse noted that in addition to the pain he was suffering and his diagnosis of schizophrenia, he was “quite preoccupied with ISIL and the jihad”. There is also a note:

6. [44]

   The remaining two matters were the most significant matters relied upon, and should be summarised in more detail.

7. [45]

   The fifth matter was based on evidence given by a corrections officer about an encounter with the respondent on 25 August 2015 in the medical unit at Junee Correctional Centre. The officer gave the following evidence:

8. [46]

   The officer was cross-examined briefly before the primary judge, where he was asked about the bomb threat:

9. [47]

   Finally and sixthly, there was the evidence of witness A, who was in prison in 2016 and regularly spoke with the respondent. (His identity was the subject of suppression orders made by the Court on the application of the Attorney General.) The primary judge addressed this evidence at [68]–[71], which is best reproduced in its entirety:

The reasons of the primary judge

1. [48]

   The primary judge heard the trial occupying two days, involving a deal of documentary and testimonial evidence, and delivered reasons of 102 paragraphs promptly, three weeks later.

2. [49]

   At [1]–[22] the primary judge uncontroversially set out matters of background and the statutory regime. At [23]–[29] he addressed the personal and psychiatric antecedents of the respondent. The respondent was born in Syria to a Lebanese father and a Syrian mother in July 1975, and so is now aged 43. He was the eldest of 8 children, and his family migrated to Australia when he was about 3 years old. He maintained that he was physically abused by his mother as a child, and was removed from her care and placed by the Department of Community Services with his grandparents. When he was 10, he returned to Lebanon where he was said to have been “molested” by an older male. He commenced using illicit drugs at age 12, first cannabis, then (from 14) cocaine (smoked) and heroin (injected). He also used ecstasy at around this time and, from 2010, methylamphetamine.

3. [50]

   From the age of 14, the respondent claimed that he commenced to hear voices. He told one of the psychiatrists retained pursuant to a court order that he had been diagnosed with schizophrenia in his earlier teens, although the primary judge noted that there was sparse documentation to that effect. Aged 33, in 2009, Justice Health concluded that he had a “chronic psychotic illness”, possibly precipitated by drug abuse, and that he exhibited signs of chronic paranoid schizophrenia. Subsequently he has received anti-psychotic medication, although frequently while at liberty he has not followed the medication regimes and has relapsed into psychosis.

4. [51]

   The respondent has also been assessed for cognitive ability and, on a number of occasions, the results suggest lower than average functioning. In 2010, a full-scale IQ measurement of 89 was obtained.

5. [52]

   The respondent’s history also includes assaults while in prison, occasions of self-harm (including swallowing a razor blade in 2000 and attempting to hang himself in 2001), mistreatment while held in jail in Syria in 2001 and in Sydney in September 2011, he was shot in the back, from which wound he claims to continue to suffer pain and restriction of movement. In July 2018 he was subjected to a group attack in prison.

6. [53]

   At [30]–[39] the primary judge dealt with the respondent’s criminal record and custodial history. The sentences of imprisonment are numerous and, when released on parole, there is a history of breaches of parole and the revocation of parole. The result was summarised by the primary judge at [37]:

7. [54]

   Significantly, for present purposes, when released on parole on 12 November 2016, he departed overseas on 6 December 2016, in breach of his parole. He returned from overseas on 25 May 2018, having been in Lebanon and Germany. The evidence did not indicate whether he went to Syria or Iraq. In June 2016, before being released from prison, there was evidence that he had said that “he wants to travel to Syria / Iraq upon his release from gaol to join ISIS”.

8. [55]

   At [40]–[71] the primary judge dealt with the evidence bearing upon the respondent’s capacity for violence and religious hostility, and his expressions of support for terrorism, upon which the judge concluded that the respondent was a “convicted NSW terrorism activity offender”. This conclusion was the subject of challenge by way of notice of contention, but for present purposes may be passed over. However, the primary judge noted at [73] that it was material to the evaluation required by s 20(d) that the respondent qualified as a “convicted NSW terrorism activity offender” upon “a very narrow and particular basis”. The primary judge said:

9. [56]

   At [74], the primary judge said:

10. [57]

    The primary judge said that that was significant, and at [75]–[77] contrasted the violent propensities demonstrated by the respondent with the conduct which has been the subject of convictions for terrorism offences since 2003. The State contended that this reasoning involved error. The primary judge summarised the position as follows at [78]–[79]:

11. [58]

    At [80]–[97], the primary judge addressed the expert evidence of the respondent’s propensities, and it will be necessary to return to this in order to deal with ground 2(e) of the appeal. The primary judge noted at [83]–[84] that the respondent was outside the scope of the Crimes (High Risk Offenders) Act. His Honour, with respect rightly, noted the importance of the distinction, because under the Act:

12. [59]

    Finally, under the heading “Risk of terrorism offending not unacceptable (pre-requisite 4)”, the primary judge expressed his conclusion on s 20(d) at [98] as follows:

13. [60]

    The primary judge further stated at [99] that, as required by s 25(1)(e) and (h), he had considered the practicality of managing the respondent under an extended supervision order and had determined that while the implementation of such an order would be fraught with difficulty, that would not be a reason for not making such an order if the circumstances of the case otherwise justified it, although it would dictate that the conditions should be looser than those which had been imposed on an interim basis. His Honour stated that he had taken into account all other matters listed in s 25(3) of the Act.

14. [61]

    At the time that those orders were made, the respondent had been arrested and charged with five counts of failing to comply with various conditions of an interim supervision order made by a judge in the Common Law Division following a contested hearing on 2 August 2018: State of New South Wales v Naaman (No 2) [2018] NSWSC 1329, and thereafter extended twice by consent by another judge of the Division on 28 August and 25 September 2018. The respondent was released from custody on 25 November 2018, having served the entirety of all sentences for offences of which he has been found guilty, and subsequently has continued to be subject to an interim supervision order which will expire on 21 December 2018: State of New South Wales v Naaman [2018] NSWCA 293.

The appeal

1. [62]

   The State pressed the following grounds of appeal:

Resolution of grounds of appeal

1. [63]

   In dispositive [98] of his reasons, the primary judge, with respect, correctly, identified the basic weakness in the State’s case for an extended supervision order. Critical to the evaluative determination posed by s 20(d) is the risk of the respondent committing a serious terrorism offence. In the way the State propounded that risk both at trial and on appeal, this turned upon the risk of the respondent committing a “terrorist act”. That in turn requires either action or the threat of action accompanied by both of the intentions specified in pars (b) and (c) of the definition.

2. [64]

   True it is that the respondent has a history of crime, including violent crime. And it is true that, when apprehended, the respondent has had a history of responding aggressively, resisting arrest with threatened violence and, on at least one occasion, an actual struggle with apprehending police officers.

3. [65]

   However, there is no evidence at all of violence, let alone serious violence, done with the intention of advancing a political, religious or ideological cause. Likewise, there is no evidence at all of violence, let alone serious violence, done by the respondent with the intention of coercing or influencing by intimidation a government or a section of the public. We did not understand the State to contend to the contrary.

4. [66]

   Rather, the State’s submissions turned upon what was said to be evidence of a threat of violence made with the intentions of (a) advancing a political, religious or ideological cause, and (b) coercing or influencing by intimidation a government or a section of the public. However, contrary to the State’s submissions, the evidence does not disclose any significant threat of violence accompanied by either, let alone both, intentions. Rather, there is overwhelming evidence that the respondent, who is mentally unwell and has a history of not taking medication, has on occasion reacted violently and spontaneously. But that falls well short of a conclusion of the unacceptable risk which is a precondition for orders being made under the Act.

5. [67]

   The State correctly identified [98] of the reasons of the primary judge as the dispositive reasoning on s 20(d). The State submitted that the divergence in the language from the statutory language was “worrying”. Emphasis was given to the reference to a “significant risk” as opposed to an unacceptable risk, and to the view that it was not likely to involve an act of “really serious violence”. These expressions were said to have departed from the statutory question.

6. [68]

   It may be acknowledged that if the primary judge had circumscribed his evaluation only to the risk of “really serious violence”, and had confined attention to “significant” risks, that would depart from the task imposed by the Act. A risk which is of a high degree of likelihood but falls short of “really serious violence” might nonetheless be unacceptable. So too, a risk which is relatively unlikely, so much so that it might fall short of being of “significant” probability, might nonetheless in light of the seriousness of its consequences be one which is unacceptable. As much is confirmed by s 21.

7. [69]

   Although a literal reading of his Honour’s judgment may support the conclusion for which the State contends, we do not consider that his Honour fell into that error. Although his Honour squarely confronted the fact that the probability of future criminal conduct, accompanied by violence, was high, that is far from sufficient to satisfy s 20(d). The primary judge was plainly conscious of the absence of meaningful evidence as to the requisite purposes, given that the respondent’s history was characterised by unpremeditated acts of violence. The primary judge also invoked the same lack of premeditation against a finding of likely serious harm.

8. [70]

   The State emphasised the respondent’s statement about bombing the correctional centre. But it could not fairly be said that the threat to bomb Junee Correctional Centre was made for the purpose of intimidating the Australian public or an Australian government, or to promote the purpose of Islam. Aside from the fact that the respondent immediately stated that he was joking, the threat was made following the respondent’s irritation at not being provided with his medication more speedily. Even if, favourably to the State, the threat should be regarded as other than a joke, there is no suggestion in the evidence served by the State that the threat had an intention capable of satisfying (b) or (c) of the definition. The fact that the respondent, when told that his remarks were unwarranted and his behaviour threatening, then asked “Is it because of my beard, is it because I am Muslim?” falls short of establishing that there was a threat accompanied by a purpose satisfying pars (b) and (c) of the definition of “terrorist act”. Rather, it indicates that the respondent thought the officer was drawing an inference from the respondent’s appearance and religion.

9. [71]

   It is also true that there was evidence of a threat by the respondent to commit violence overseas; this is addressed in ground 2(b) below.

10. [72]

    Ground 2(a) was not pressed. Ground 2(b) maintained that the primary judge failed to address an important aspect of the State’s case. The reasons of the primary judge, especially at [74] and [79], contrasted evidence of the respondent’s willingness to perpetrate violence in the Sunni Islamic cause in Syria, with absence of such evidence in relation to the Australian population or Australian governments. The State submitted that this was factually erroneous, insofar as its case extended to the statement made in August 2015 that he would bomb the Junee Correctional Centre. The State submitted that the unduly narrow focus of the primary judge led to error in his evaluation of the s 20(d) pre-requisite.

11. [73]

    This ground is not made out. Paragraph [74] has been reproduced in full above. Significantly, the statements about matters falling outside the State’s case are not unqualified. They are not statements that the respondent had never expressed an intention to carry out acts of violence in Australia. They are statements that are, with respect, carefully qualified by words picking up the intentional aspects of the definition of “terrorist act”. The concluding words “for the purpose of intimidating the Australian public or an Australian government” and “for the purpose of advancing Islam” are plainly directed to the intentional elements in paragraphs (b) and (c) of the definition of “terrorist act”. As such, the primary judge made no error in identifying the limitations of the State’s case.

12. [74]

    In its written submissions, the State complained that “it is of little relevance whether the commission of the acts amounting to a serious terrorism offence were likely to occur in Australia or Syria in the circumstances of this case”. That is not so. Once the importance of the two elements of intention in pars (b) and (c) of the definition of “terrorist act” is borne in mind, it is plain that those matters are squarely relevant to the inquiry.

13. [75]

    It is true that there is evidence that the respondent has threatened to travel overseas to commit acts of violence. Much of that evidence is of events that occurred many years ago, and some occurred in circumstances where the respondent said he was joking. The risk of that eventuating falls to be assessed in light of the fact that when the respondent did, more recently, travel to Lebanon, there is no evidence of any acts of violence being performed by him.

14. [76]

    No error has been established in concluding that there is not an unacceptable risk of committing a serious terrorism offence outside Australia if an extended supervision order is not made.

15. [77]

    Ground 2(c) was said to be that it was irrelevant for the primary judge to have had regard, at [75]–[78], to the dissimilarities in the respondent’s case compared to those who have been convicted of terrorism offences since 2003. The ground is framed in terms of the language of judicial review. This is inapt. Nothing in the Act precludes the Court having regard to the relatively less extreme manifestations of violence and threats of violence disclosed by the respondent in contrast with those convicted of terrorism offences. To the contrary, the Court’s inquiry is largely unfettered, and indeed is required by s 25(3)(m) to have regard to “any other information that is available as to the likelihood that the offender will commit a serious terrorism offence”. The consideration undertaken by the primary judge was of information which was squarely relevant to an assessment of that risk, as well as to whether such risk as there is is unacceptable.

16. [78]

    If by this ground the State intended to submit that the primary judge had regard only to conduct or threatened conduct which was of the same level of seriousness as those who have been convicted of terrorism offences since 2003 (and the State does, in connection with ground 1, make a similar submission), then that is addressed in response to ground 1.

17. [79]

    Ground 2(d) challenged the finding made in [81] that “on the basis of [the respondent’s] record, the level of violence he may perpetrate is likely to be of a relatively low order”. The State submitted that the reference to “relatively low” order involved a contrast with the offending conduct of those who have been convicted of terrorism offences, which had been discussed only a few paragraphs earlier in his Honour’s reasons, and was irrelevant to the exercise being conducted. The respondent submitted that the reference to “relatively low order” was to be read as a reference to the “serious harm” which was required of an action or threat of action in order for it to amount to a “terrorist act”.

18. [80]

    The State emphasised that the relatively recent incident of slashing at a corrective services officer’s head and neck with a razor, and the incident some 16 years ago of seizing a police officer’s service pistol, were both conduct which could have resulted in the infliction of very serious injury, or even death.

19. [81]

    Ultimately it is not necessary to determine whether by “relatively low order” his Honour was drawing a contrast with the offending conduct in earlier paragraphs or with the “serious harm” required by the definition. When this portion of his Honour’s reasons is fairly read, it is, with respect, entirely accurate. The key to understanding what was meant is the elaboration that occurs in [82] of the reasons of the primary judge, which is as follows:

20. [82]

    Thus the attack with the razor blade commenced with dissatisfaction with a meal supplied to the respondent, and the threat to bomb the correction centre commenced with a complaint about delay in receiving medication.

21. [83]

    Unpremeditated, reactionary violence and threats of violence upon being caught can, of course, still be extremely serious. However, as the primary judge said, that is a fair characterisation of the acts of violence and threatened violence which the respondent has committed and made in the past.

22. [84]

    This ground is not made out.

23. [85]

    Ground 2(e) addressed his Honour’s consideration of two aspects of the opinion evidence of Dr Eagle. The first was that the primary judge reiterated the qualifications to Dr Eagle’s evidence including by reference to the veracity of the evidence of witness A.

24. [86]

    Dr Eagle’s opinion usefully addressed the issue of whether the respondent’s evident religious belief may dispose him to act violently. At par 93 Dr Eagle said:

25. [87]

    The State drew attention to the judge’s assessment of the evidence of witness A as probative and reliable. The primary judge commented that witness A’s evidence “appeared [to have] no element of exaggeration” and he regarded witness A as “entirely credible”: at [70]–[71]. The State submitted that, accordingly, the primary judge should have given more weight to Dr Eagle’s opinion.

26. [88]

    Secondly, Dr Eagle gave further evidence, recorded at [94] and [95]:

27. [89]

    True it is that the primary judge was favourably impressed by witness A, and his Honour did not draw the conclusion that part of witness A’s evidence should reinforce the conclusion of Dr Eagle. However, that did not prevent other aspects of the evidence of both witness A and Dr Eagle qualifying the assessment of the risk of a terrorist act.

28. [90]

    Witness A was at pains to say that the respondent did not himself wish to kill people. His evidence included the following:

29. [91]

    Shortly afterwards, the primary judge asked the following question:

30. [92]

    Further, Dr Eagle’s opinion as to risk was heavily qualified. Dr Eagle is a qualified forensic psychiatrist. She diagnosed the respondent by reference to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (5th ed), as having a likely diagnosis of schizophrenia, a “substance use disorder, in remission under supervision” and an “anti-social personality disorder”. However, when Dr Eagle turned to her risk assessment, her report gave prominence to the limitations of the assessment. This portion of her report commenced as follows:

31. [93]

    Dr Eagle then dealt with risk assessment tools, such as the so called “TRAP 18” protocol, and stated that “there is insufficient research demonstrating their reliability in identifying potential violent radicals or reducing the risk of terrorist events” (par 117) and that “[the TRAP 18 protocol’s] effectiveness in identifying potential lone actor violent extremists has not yet been reliably validated” (par 121).

32. [94]

    Overall, it is difficult to see why the primary judge’s favourable assessment of witness A’s evidence should have significantly affected his Honour’s assessment of Dr Eagle’s evidence. There were several elements of uncertainty attending her opinion. One element was the reliability of witness A. The favourable finding as to that witness was based on his evidence in court, which did not provide a basis to disregard Dr Eagle’s opinion.

Notice of contention

1. [95]

   The respondent sought to support the orders made by the primary judge on the basis that s 20(c) was not made out. The respondent contended that the primary judge should not have accepted witness A’s evidence. He sought to adduce further evidence, which had not been available to the primary judge, to the effect that contrary to witness A’s evidence before the primary judge, witness A had sought to obtain a discount for assistance to the authorities. The respondent contended that the evidence would in turn require witness A to be cross-examined.

2. [96]

   Given the result of the State’s appeal, the result of the notice of contention cannot give rise to any other orders beyond those resulting from the failure of the State’s notice of appeal. In those circumstance, the notice of motion for fresh evidence is of no utility and should be dismissed.

Orders

1. [97]

   For those reasons, it will be seen that the State has failed to establish an unacceptable risk of actions or threats of action accompanied by an intention required by pars (b) and (c) of the definition of terrorist act.

2. [98]

   We are conscious of the risk of a person who is mentally unwell committing a spontaneous act of serious violence. Some of the acts of terrorism committed in Australia have been committed by people who are mentally ill. However, even if there were evidence to suggest that the respondent might engage in the conduct mentioned in the State’s submission, there is nothing to suggest that the conditions imposed by an extended supervision order would reduce that risk from manifesting. It is to be borne in mind that the State accepts that the respondent, who has served the entirety of all periods of imprisonment for offences committed by him, is to be released; the only question arising on this appeal is whether he should for the next 3 years be subject to the conditions on his liberty contained in an extended supervision order.

3. [99]

   The appeal should be dismissed. The notice of motion dated 10 December 2018 seeking to tender fresh evidence should be dismissed. The existing interim supervision order, which expires on 21 December 2018, should be set aside. It was agreed that if the appeal were dismissed, the State should be ordered to pay the respondent’s costs.

4. [100]

   The Court’s orders are: