State of New South Wales v Elmir

1. [1]

   HIS HONOUR: By its summons filed on 23 June 2023, the State of New South Wales seeks a suite of orders in the usual form pursuant to several provisions of the Terrorism (High Risk Offenders) Act 2017. The State ultimately seeks an Extended Supervision Order against Mr Elmir for a period of 12 months. However, the proceedings come before me only for the preliminary hearing contemplated by s 24(4) of the Act.

2. [2]

   As is well understood, s 20 of the Act empowers this Court to make an extended supervision order against Mr Elmir as an eligible offender if certain matters are established. Those matters include, in accordance with s 20(d), whether the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. With that fundamental test in mind, the issue to be decided by the Court at a preliminary hearing is circumscribed by subsections 24(5) and 24(7) of the Act as follows:

3. [3]

   It is agreed between the parties, and I am otherwise satisfied, that the evidence upon which the State relies establishes both that Mr Elmir is an eligible offender as well as each of the preconditions to the making of this application that are listed in s 20(a), (b) and (c) of the Act.

Background

1. [4]

   On 16 August 2016, Mr Elmir pleaded guilty before Davies J to an offence involving committing acts in Turkey between April and June 2016 in preparation for incursion into Syria for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code 1995 (Cth). Mr Elmir was sentenced by his Honour to a term of imprisonment of 5 years, with a non-parole period of 4 years and 1 month: R v Elmir (No 3) [2019] NSWSC 1040. Regrettably, in what seems now to have become a standard and predictable outcome in such cases, Mr Elmir was never released to parole and remained in custody until the expiration of his head sentence on 21 September 2022.

2. [5]

   The circumstances of the foreign incursion offence can be shortly stated. Mr Elmir travelled to Turkey in 2016 and stayed in an Islamic State safe house for two months. He attempted to gain entry into Syria allegedly with a view to taking an active part in hostilities against the Assad regime. Mr Elmir was arrested by Turkish authorities before this could occur and placed in immigration detention.

3. [6]

   Mr Elmir had pleaded guilty to this offence. Part of the agreed facts were that he had “accumulated some 70 kilograms of military equipment”. The facts do not otherwise specify what that military equipment was. It is never referred to in specific terms other than as an assumption. Davies J was not apparently told what it was intended to involve. My inquiries of senior counsel for the State in these proceedings did not clarify the matter. By reason of the potential significance of the precise details of the “military equipment” concerned, I note for my part the very troubling fact that the equipment has never been described in anything other than generic terms. Military equipment could describe guns and hand grenades at one level of seriousness or camouflage fatigues and army boots at another. I am accordingly unable to make any reliable assumptions when considering this issue.

4. [7]

   In support of the present application, the State made the following submissions about the offence:

5. [8]

   On 20 December 2019, Walton J imposed an extended supervision order on Mr Elmir for a period of 12 months: State of New South Wales v Elmir (Final) [2019] NSWSC 1867. That extended supervision order is due to expire on 20 September 2023.

6. [9]

   The foreign incursion offence was not an index offence for the purpose of that extended supervision order. The index offences occurred when Mr Elmir was on remand on 20 February 2018. Mr Elmir punched a Corrective Services officer and then assaulted another officer during the ensuing struggle. He was convicted of two counts of assault of a law enforcement officer in the execution of his duty and inflicting actual bodily harm, contrary to s 60A(2) of the Crimes Act 1900. Mr Elmir was sentenced to wholly concurrent terms of 6 months and 8 months imprisonment, expiring respectively on 17 January 2019 and 17 March 2019.

Submissions

1. [10]

   The State submitted that Mr Elmir has held extreme religious beliefs for a lengthy period of time, and has demonstrated a willingness to take very significant steps towards engaging in violent conduct in connection with those beliefs. The State acknowledged observations by Ms Naomi Prince, a psychologist, that there appears to have been some reduction in the risk posed by Mr Elmir but submitted that the primary change in that respect "relates to contextual changes to global politics rather than a specific change to his beliefs".

2. [11]

   The State submitted that in the circumstances, and having regard to the strength of the observations in the various earlier expert reports regarding the risk posed by Mr Elmir, as well as the protective objects of the Act, the matters alleged in the supporting documentation would, if proved, satisfy me to a high degree of probability that Mr Elmir poses the relevant risk.

3. [12]

   It was submitted on behalf of Mr Elmir that the evidence that he poses any risk of committing a serious terrorism offence, even taking the State's case at its highest, is equivocal. It shows Mr Elmir has never expressed support for terrorism, as opposed to religiously motivated violence in the context of armed conflict. The evidence is that he no longer expresses support for violence generally, that he has never engaged in, or expressed any intention to engage in, the planning, preparation or execution of a terrorist act in Australia.

4. [13]

   Mr Elmir contends that the State relies, to a significant degree, upon speculation as to what might occur should certain unknown and unknowable circumstances arise in the future. He submitted that the evidence, taken at its highest, is not capable of satisfying me to a high degree of probability that the risk of Mr Elmir committing a serious terrorism offence is unacceptably high.

5. [14]

   Further, Mr Elmir submitted that, in the alternative, the evidence does not establish that a further extended supervision order would reduce the risk, to the extent that it exists at all. It was submitted that the imposition of a supervision order may well be counterproductive in the sense that it may create circumstances similar to those that led Mr Elmir to be influenced by extreme religious material in 2016. He submitted that this was sufficient reason to exercise the discretion to refuse to make an order, even if the test is satisfied.

Consideration

1. [15]

   In support of this application, the Crown tendered two volumes of material, which for present purposes can be taken to be the “supporting documentation” as that expression is used in the Act. Included in that material are a large series of what amount to risk assessment reports relating to Mr Elmir.

2. [16]

   Ms Prince conducted a risk assessment of Mr Elmir in connection with the proceedings that resulted in Walton J’s decision. That report is dated 17 June 2022. Ms Prince concluded at that time that Mr Elmir posed a “moderate to high” risk of engaging in “religiously motivated violence, violent extremism or terrorism activity”.

3. [17]

   Ms Prince has since prepared an updated risk assessment report dated 5 June 2023. Mr Elmir participated in an interview in connection with that report but was generally unwilling to discuss his beliefs. Ms Prince’s ultimate conclusion was that “Mr Elmir is considered to present with a moderate risk of supporting, promoting, or engaging in violent extremism related behaviour.” That conclusion is discussed later in these reasons. However, it must necessarily be seen in the context of several other conclusions arrived at and referred to by Ms Prince. The following comments and opinions, extracted from Ms Prince’s latest report, should therefore be closely scrutinised.

4. [18]

   First, paragraph 97:

5. [19]

   It is not in issue that Mr Elmir holds strict, possibly even extreme, religious beliefs to which he rigidly adheres. No criticism can be levelled at him because of that. It is apparent, as Ms Prince observes, that Mr Elmir encounters difficulties in Australian society to the extent that our secular culture is often at odds with Islamic tradition in general and Mr Elmir’s interpretation of it in particular. Notwithstanding that conflict, Mr Elmir is “happy to live in Australia and does not demonstrate overt hostility toward Australia”. Moreover, Mr Elmir “has actively sought ways to ensure that he is compliant with his [extended supervision] order whilst simultaneously not compromise [sic] his religious beliefs.” Those matters bear significantly in my opinion upon the assessment of any relevant risk that Mr Elmir may be thought to pose.

6. [20]

   Secondly, paragraph 99:

7. [21]

   Considering Mr Elmir’s involvement with police and the policing process, it is not difficult to understand his lack of trust. Having been sentenced to a term of imprisonment with a specified non-parole period, the fact that he was never released to parole, despite a reasonable expectation that he would have been, it is unsurprising that he maintains such feelings. However, and somewhat remarkably, “Mr Elmir does not present with overt hostility toward police or the legal system”. This seems to me to be a circumstance of considerable importance in the context of the present inquiry.

8. [22]

   Thirdly, paragraph 100:

9. [23]

   This paragraph of Ms Prince’s report raises a matter that is evident throughout that report and which also emerges in other expert assessments of Mr Elmir’s risk profile. It is apparent that Mr Elmir is generally disinclined to engage in conversations or other forms of interaction with authorities, including medical practitioners or psychological professionals sent to examine him. For example, as noted in this paragraph, Mr Elmir “was unwilling to discuss the parameters of his political and religious views.” This unwillingness has unfortunately rebounded to Mr Elmir’s disadvantage in two ways. On the one hand, it has raised concerns with experts, of whom Ms Prince is one, that Mr Elmir is unwilling to engage, the inference being that it is not possible to understand Mr Elmir’s risk of committing a serious terrorism offence unless he explains his position in terms when asked. On the other hand, sometimes, although not without exception, answers given by Mr Elmir when questioned that appear to be favourable to him are discounted or devalued as potentially self-serving and disingenuous. So for example, Ms Prince notes that Mr Elmir “denies support for violence on Australian soil or a willingness to support others to act; however, his writings and communications do suggest support for violence in the context of war/self-protection.”[Emphasis added] It should, of course, be remembered that the fact that his “fundamental belief system could leave him vulnerable to accepting religiously motivated violence in the ‘right’ conditions” does not actually engage with the risk to which s 20(d) of the Act specifically refers.

10. [24]

    Fourthly, paragraph 102:

11. [25]

    This paragraph is, with respect to Ms Prince, another example of the tendency to which I have referred in the preceding paragraph. Everything in Ms Prince’s descriptions in this paragraph is favourable to Mr Elmir. As Ms Prince has observed, Mr Elmir “denies intention to engage in terrorism activity and states an unwillingness to support others to do so”. That plainly unambiguous position is, however, immediately discounted by reference to Mr Elmir’s failure overtly to denounce the terrorist actions of others. Moreover, Ms Prince’s concern that “it is unknown if he would actively stop an event occurring if he were aware of it” once again appears illegitimately to place some obligation of denial upon Mr Elmir and to raise the spectre of doubt until he discharges it. These are matters that I consider must be taken into account in the assessment of whether the State has demonstrated that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

12. [26]

    Fifthly, paragraph 109:

13. [27]

    At least two things can helpfully be said with respect to this paragraph. First, and without expressing or implying any criticism of Ms Prince, her assessment of Mr Elmir’s moderate risk describes a risk of “supporting, promoting, or engaging in violent extremism related behaviour” rather than a risk of committing a serious terrorism offence. The distinction may appear to be merely pedantic but should not be overlooked. However, secondly, and in my opinion very importantly, the remainder of the paragraph is nothing short of an unqualified and resounding endorsement of a quite different assessment. There is to that extent what appears to be a significant tension between Ms Prince’s conclusion based upon an “overall assessment of all available information” and a (unexpressed) conclusion that one might reasonably arrive at based instead upon what she describes as “the information provided”. Everything to which Ms Prince refers after her reference to “the information provided” seems to me to be wholly inimical to her conclusion concerning the existence of a moderate risk. It is not surprising that Mr O’Donnell of senior counsel for Mr Elmir has placed considerable emphasis upon these matters in his response to the State’s contentions.

14. [28]

    Sixthly, paragraph 111:

15. [29]

    Ms Prince refers to the fact that “Mr Elmir has not demonstrated any significant behaviours or concern” but appears to imply that he is keeping his head down until the extended supervision order that affects him ceases to apply. Once again, Mr Elmir is foist with a conclusion about him that actively, and in my view unfairly, deprives him of the benefit of any doubt. For example, the fact that Mr Elmir has restricted his social activities is entirely or at least equally consistent with an appreciation that the restrictions to which he subject are best met in isolation and away from influences that may be troublesome. That is a circumstance that should be added to the credit side of Mr Elmir’s ledger rather than constituting a matter that only raises suspicion about his motives.

16. [30]

    Seventhly, paragraphs 114 and 116:

17. [31]

    These paragraphs invite no comment, apart from the obvious fact that they do not support the State’s contentions in this case.

18. [32]

    Eighthly, paragraph 118:

19. [33]

    This paragraph throws into stark relief the test that must be met in the ultimate disposition of the State’s application for an extended supervision order against Mr Elmir. There is “no indication that Mr Elmir demonstrates an intention to engage in or promote terrorism activity in Australia”. Moreover, Ms Prince was provided with “no information…to suggest that Mr Elmir has ever been implicated in terrorism activity (including supporting behaviours) in Australia”. That is said to be in contrast with his having attempted to enter Syria in 2016 with 70kg of unspecified and unrecovered “military equipment”. The comparison between Mr Elmir’s historical activities and the fact that he has never been implicated in terrorism activity in Australia, including, significantly, supporting behaviours, is not one that favours a view that Mr Elmir poses the risk to which s 20(d) of the Act refers, as opposed to some lesser risk or none at all. I remind myself that the satisfaction to be achieved, before the State’s application can succeed, is satisfaction to a high degree of probability.

20. [34]

    Finally, Ms Prince was asked to respond to a series of questions, of which the following should be noted:

21. [35]

    This paragraph is consistent with the themes evident in Ms Prince’s earlier remarks. It will be apparent that, despite being asked for her opinion upon the ultimate s 20(d) issue, her response is instead one that deals not with serious terrorism offences but with “violent extremist or terrorism related activity”. However, I do not consider that fact to be critical or determinative: Ms Prince’s view, clearly expressed, is that “Mr Elmir does not present with any proximal behavioural indicators that suggest he is on a pathway toward engaging in any form of violent extremist or terrorism related activity.” However, for my part, I cannot reconcile that statement with Ms Prince’s conclusion that “overall and based on all available information, Mr Elmir’s risk of engaging in violent extremism is assessed as being in the moderate range”. Once again, with respect to Ms Prince, I am simply unable to accommodate the proposition that Mr Elmir evinces no proximal [sic, proximate] behavioural indicators suggesting he is on a pathway to violent extremism or terrorist activity with an assessment that he is coincidentally at moderate risk of doing so.

22. [36]

    Ms Prince’s report is not the only report concerning Mr Elmir. The supporting documentation upon which the State relies is far more detailed and extensive. I have considered as much of it as possible, but in particular I have taken account of all expressions of opinion concerning the existence or otherwise of the risk in question here, even though in some cases the description of the risk does not necessarily accord with the risk of committing a serious terrorism offence as defined by the Act. I have also taken account of the remarks of Davies J in sentencing Mr Elmir in 2019 and the decision of Walton J in ordering extended supervision in 2019. I have in doing so considered the various categories of information to which the Act draws attention (s 25(3)) and I have also taken into account the paramount consideration of the safety of the community: s 25(2).

Conclusions

1. [37]

   Bearing these things in mind, it seems to me that the State’s approach to the establishment of the relevant risk is distinctly subjunctive. The supporting documentation appears to me to suggest no more than a series of arguable possibilities about whether Mr Elmir poses an unacceptable risk, rather than the existence of a state of satisfaction, let alone a state of satisfaction proved to a high degree of probability, that he does so. An example of this can be seen in the State’s submissions, quoted at [7] above, that Mr Elmir “may well have committed offences that would” etcetera, and “he may have committed acts of serious violence in order to advance a religious or ideological cause”. It is in my view insufficient for the State merely to identify a series of hypothetical risk possibilities which the evidence cannot be seen to elevate to a high degree of probability.

2. [38]

   The elements of s 20(d) of the Act were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 where the key aspects of the provision were summarised at [29]:

3. [39]

   It is particularly instructive, in the light of these principles, to note Ms Prince’s most recent conclusion, published only fourteen days ago, in her Confidential Psychological Risk Assessment Report dated 31 August 2023:

4. [40]

   I am particularly troubled that Ms Prince’s acknowledged difficulty providing an informed opinion of Mr Elmir’s likely trajectory at the cessation of the current order, a position that I accept without question is Ms Prince’s well-documented and genuinely held expert opinion, should somehow be permitted to displace the requirement of an evidence-based conclusion of which I can be satisfied having regard to the high degree of probability required. Anything other than an informed opinion in my view invites speculation and is contrary to authority.

5. [41]

   The high degree of probability test that must be satisfied is no more or less than a statutory recognition of the extraordinary interference with a defendant’s rights that the imposition of an order under the Act represents. As Naaman makes clear, if it were not otherwise plain, the exercise called for is not a matter for speculation. Skilful and well-credentialed experts, such as Ms Prince, offer their best assessment of the risk but as they universally and properly accept, the question of whether the requisite degree of satisfaction has been met is ultimately one for this Court to decide: the expression of an opinion by an expert upon the ultimate issue concerning the existence or quantification of the putative risk is no more than a piece of evidence that I am entitled – indeed required – to evaluate along with all of the other supporting documentation.

6. [42]

   Having done so, I am not satisfied to the requisite degree that Mr Elmir poses the risk alleged: that is to say, following the preliminary hearing, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order against Mr Elmir.

Orders

1. [43]

   In my opinion, the following orders should be made:

   1. (1)

      Dismiss the application.

   2. (2)

      Order the State of New South Wales to pay Mr Elmir’s costs.