State of New South Wales v Haidar

1. [1]

   By a summons filed on 13 December 2019 the State of New South Wales seeks, in the first instance, interim orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act) and, thereafter, if the interim orders are granted, an extended supervision order for three years under that Act.

Legislation

1. [2]

   The requirements for the making of an extended supervision order are principally contained in ss 20 and 21 of the Act. Those sections provide:

2. [3]

   Section 4 of the Act defines serious terrorism offence as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 years or more imprisonment.

3. [4]

   Section 7 of the Act defines eligible offender as follows:

4. [5]

   Section 6 defines the words serving sentence of imprisonment as follows:

5. [6]

   In the present matter the State asserts that, for the purpose of s 20(c), the defendant is a convicted NSW terrorism activity offender as defined in s 10 of the Act relevantly as follows:

6. [7]

   Section 100.1(1) of the Criminal Code (Cth) being a schedule to the Criminal Code Act 1995 (Cth) defines terrorist act as follows:

7. [8]

   Section 102.1 of the Criminal Code defines terrorist organisation as follows:

8. [9]

   Sections 24 and 27 of the THRO Act deal relevantly with the making of an interim order. Those sections relevantly provide:

Legal principles

1. [10]

   The first application made under this Act was State of NSW v Ceissman [2018] NSWSC 508. In his judgment in that case Rothman J helpfully summarised the principles from the Act, and drew attention to the similarities with the learning that had developed in relation to the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). I gratefully adopt his Honour’s summary set out at [8]-[42] of that judgment. I note particularly the following matters:

2. [11]

   In addition, I note what the Court of Appeal said in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29] when speaking of s 20 of the THRO Act:

3. [12]

   Sections 24(5) and 27(b) both contain the same test, namely,

4. [13]

   In State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041, a case under the CHRO, RA Hulme J said:

5. [14]

   I accept the State’s summary of the principles concerning the approach to be adopted by the Court when hearing a preliminary application:

Evidence

1. [15]

   The State relied on the following evidence:

2. [16]

   The Defendant read an affidavit of the defendant’s solicitor, Diane Elston affirmed 15 January 2020.

3. [17]

   The following summary is derived principally from the report of Ms Czerkies.

4. [18]

   The defendant was born in July 1989 and is now aged 30 years. He was born in Beirut in Lebanon and arrived with his family in Australia in 1991 when he was two years old. He is the second eldest of five children. He has a five-year-old daughter from a previous relationship that endured ten years.

5. [19]

   There is a history of experiencing violence at home at the hands of his father, poor school experiences, significant illicit substance abuse and concerns with the law.

6. [20]

   He has also been diagnosed with various mental health issues which impact his day to day living and his ability to obtain and sustain employment. He has been diagnosed with a number of conditions over the years but has most recently been diagnosed with schizoaffective disorder. In April 2019 he was scheduled under the Mental Health Act 2007 (NSW) for approximately one month. His ongoing chronic use of illicit substances negatively impacts his mental health, and interferes with his ability to successfully engage in intervention to address those factors. He is currently on a disability support pension.

7. [21]

   He has used social media platforms to share images of himself showcasing weapons and firearms. He has used such platforms to share and express his support for the AMAL movement and Hezbollah (also spelt Hizbullah and Hizbillah) in Lebanon. One wing of Hezbollah is a proscribed terrorist organisation by the Australian and other governments.

8. [22]

   The defendant has a lengthy history of violent offending, having been dealt with by the Children's Court for a number of serious offences including aggravated robbery, assaulting/resisting officers. As an adult the defendant has a history of convictions for violence, destroy/damage property, affray, possession of unauthorised firearms and weapons, police pursuit, driving, stalk/intimidate, drug possession and supply as well as domestic violence against members of his family including his father, brother, sister and partner.

9. [23]

   On 23 January 2018, whilst subject to two s 9 bonds for custody of a knife and possess/use a prohibited weapon without permit, the defendant was charged with the following offences:

10. [24]

    The defendant was convicted and sentenced for these offences on 30 July 2018 to a non-parole period of 14 months commencing 9 February 2018 and expiring 8 April 2019 with a balance of term of 10 months expiring 8 February 2020. The defendant was released to parole on 8 April 2019.

Requirements to be proved

1. [25]

   It is necessary to examine whether the material in the supporting documentation would if proved make out the requirements of s 20.

2. [26]

   The defendant is an eligible offender because he is serving (on parole) a sentence of imprisonment for a NSW indictable offence. The offences against the Firearms Act and the Weapons Prohibition Act are indictable offences.

3. [27]

   This matter is satisfied.

4. [28]

   The State alleges that the defendant is a convicted NSW terrorism activity offender. The term is defined in s 10 (at [6] above). The State relies on paragraph (c)(i) of the definition. The State must show relevantly, therefore, that the defendant has previously made or is making any statement, or has previously carried out or is carrying out any activity, advocating support for any terrorist act or violent extremism.

5. [29]

   When considering whether the defendant has advocated support for a terrorist act or violent extremism, sub-s (1A) sets out three non-exclusive ways that such advocacy could occur. Those ways are:

6. [30]

   The State relies on sub-paragraph (ii), and points particularly to the following matters which are summarised in the report of Ms Czerkies as follows:

7. [31]

   The reference in paragraph 61 to the Hezbollah flag is incorrect. The flag is the AMAL flag, as both the exhibit and Dr Shanahan make clear. There was evidence that the defendant said (wrongly) that it was the Hezbollah flag. In addition there was no evidence of the matter referred to in paragraph 64.

8. [32]

   The State also relies on the following matters.

9. [33]

   In 2014 the defendant uploaded a picture to his Facebook page of himself wearing a uniform belonging to the AMAL movement (paragraph 59 of Ms Czerkies’ report). The State points to an exchange in comments left on the uploaded Facebook photograph between the defendant and a person named Mohamed Darwhice. Some of the conversation was in Arabic, but the English and the English translation of the exchange is as follows:

10. [34]

    On 16 July 2014 the defendant posted a picture on Facebook of himself with a gun (paragraph 60 of Ms Czerkies’ report). The State points to an exchange on Facebook in relation to the uploaded image where a friend of the defendant asks “Can I borrow it please” to which the defendant responds:

11. [35]

    On 5 November 2016, the defendant was in police custody. He explained to the police the significance of a number of tattoos on his body. He also began telling police about a period of time that he said he spent in Lebanon in 2013 when the Iranian embassy was bombed by the Islamic State. He claimed to have witnessed the incident from the unit block where he was staying with his aunty (paragraph 61 of Ms Czerkies’ report). He said:

12. [36]

    Dr Shanahan said that the description by the defendant correlated with the way the bombs were exploded at the embassy at that time. Dr Shananan said, however, that the images of the blast area together with Dr Shanahan’s experience of having visited the embassy several times indicated the presence of apartments close to the embassy. A number of those were caught in the second blast and significantly damaged. Dr Shanahan said that if the defendant had witnessed the incidents it was reasonable to believe that he would have received some type of injury from glass shards or the blast itself.

13. [37]

    The evidence establishes, and the State accepts, that the defendant was in Australia at the time of this incident. The description provided by the defendants appears to be no more than was in the public domain as reported in the media.

14. [38]

    On 3 November 2016 police were informed that the defendant had purchased a crossbow and taken multiple pictures of himself with it.

15. [39]

    On 5 November 2016 police conducted a FPO search of the defendant’s residence. They found two large flags with insignias “consistent with that of the Amal Political Party” (paragraph 62 of Ms Czerkies’ report).

16. [40]

    On 15 September 2017 police became aware of the defendant’s Facebook profile displaying a male (believed to be the defendant) holding an assault style firearm. The word “general” appears under the defendant’s name. There were other images of him holding a firearm (paragraph 63 of Ms Czerkies’ report). The display picture has a comment dated 14 September 2017 as follows:

17. [41]

    When the police searched the defendant’s house on 27 November 2019 they found him wearing a bracelet with Hezbollah flags on it, and there was an AMAL flag located hanging in his room.

18. [42]

    Police also found the following further images on the defendant’s Facebook (paragraph 65 of Ms Czerkies’s report):

19. [43]

    A police review of the offender's Facebook in November 2019 identified the following items of interest:

20. [44]

    An analysis of the defendant's tattoos reveals:

21. [45]

    Dr Shanahan was asked about the significance of the defendant’s tattoos and the images of the defendant on his Facebook pages. Dr Shanahan said there was nothing in any of the images that had any connection with Hezbollah. There were several images that were connected to AMAL including the AMAL symbol.

22. [46]

    The State also directed attention to some photographs which had not been shown to Dr Shanahan. One of these showed the defendant wearing a wrist band containing a copy of the Hezbollah flag.

23. [47]

    The report of Dr Shanahan provides the following information about AMAL and Hezbollah. Dr Shanahan says that AMAL is one of the two Lebanese Shi'a political parties. It was formed in the early 1970s as a political movement designed to challenge the traditional power of the Shi'a political structure in Lebanon that was based on fealty to a number of familial leaders. AMAL was a militia that grew out of the political movement.

24. [48]

    Since Syria’s withdrawal from Lebanon in 2005, AMAL has drawn closer politically to Hezbollah and has been a strong but junior partner in Hezbollah’s parliamentary political bloc. Although it is a demonstrably Shi'a party, it is more secular than Hezbollah as it is dominated by lay members and does not institutionally subscribe to the pro-Iranian ideological view of governorship of the jurist.

25. [49]

    AMAL still retains a militia component, but it is far less capable than Hezbollah's, although it is often deployed during periods of political tension in the country. Whilst AMAL has not been the target of a terrorist designation itself, its close cooperation with Hezbollah's armed element during periods of tension within Lebanon raises concerns that, while it may not share Hezbollah's ideological orientation, it does share its willingness to use its militia when its political interests are threatened. Dr Shanahan said that media reports in 2019 that the US Treasury were planning to designate AMAL a terrorist organization were played down by Washington.

26. [50]

    Hezbollah is the dominant Shi'a political party in Lebanon that retains a highly capable, semi-conventional armed militia that enjoys significant political, ideological, financial and military support from Iran. It first ran candidates in the 1992 parliamentary election and first participated in government in 2005. It has come increasingly to dominate Lebanese politics. Its leadership and many of its followers subscribe to a concept that ties it to an ideological obedience to the religious opinion of Iran's Supreme Leader Ali Khamenei.

27. [51]

    The military wing of Hezbollah is known as the Islamic Resistance, while the covert foreign operational arm is known as the External Security Organisation (ESO).

28. [52]

    The United States has listed Hezbollah in its entirety as a terrorist organisation since 1997 and Canada has done so since 2002. Australia has listed the ESO as a terrorist organisation since 2003. New Zealand has listed Islamic Resistance since 2010, while the UK proscribed the ESO in 2001, Islamic Resistance from 2008, and the whole of Hezbollah in 2019.

29. [53]

    The State submitted that by displaying the images or symbols associated with AMAL and Hezbollah, the defendant had made a statement within the meaning of s 10(1)(c) of the Act, alternatively, that the displaying was the carrying out of an activity to which that paragraph refers. So much can be accepted, and I did not understand the defendant to dispute it. The effect of the insertion of subs (1A) into the THRO Act is to deem the matters listed in that subsection as advocating support for any terrorist act or violent extremism for the purpose of paragraph (1)(c), whether or not the defendant has actually made a statement to that effect.

30. [54]

    The significant enquiry is, therefore, whether AMAL or Hezbollah is an organisation that supports terrorist acts or violent extremism. The term “violent extremism” is not defined in the THRO Act nor, for that matter, in the Criminal Code. The Macquarie Dictionary rather unhelpfully defines “extremism” as “a tendency or disposition to go to extremes, especially in political matters”.

31. [55]

    The THRO Act forms part of a wider legislative response to terrorism, and specifically incorporates the definition of “terrorist act” in the Criminal Code of the Commonwealth. It can be seen from the definition of terrorist organisation in s 102(1)(a) of the Criminal Code that there is little to distinguish such an organisation from an “organisation … that supports terrorist acts or violent extremism”. That means that a relevant consideration for present purposes is whether the organisations identified in s 10 of the THRO Act have been listed by the Commonwealth as terrorist organisations. It is of some significance that neither AMAL nor Hezbollah (except for its ESO) is a proscribed terrorist organisation by the Australian Government.

32. [56]

    The Commonwealth has, in its listing of Hezbollah’s ESO, explained how ESO relates to Hezbollah:

33. [57]

    The State submitted that, notwithstanding the distinction made by the Commonwealth, it was significant that a number of Australia’s close allies had proscribed Hezbollah generally. The State submitted on that basis, and on what was contained in Dr Shanahan’s report, the Court should conclude that Hezbollah generally should be found to be an organisation that supported terrorist acts or violent extremism.

34. [58]

    In my opinion, strong evidence would be needed for the Court to reach a different conclusion from the Commonwealth about whether Hezbollah was an organisation that supported terrorist acts or violent extremism. Nothing said by Dr Shanahan casts any doubt on the analysis by the Commonwealth for the distinction it makes between Hezbollah and the ESO. The Commonwealth accepts that Hezbollah maintains a militia and that it had deployed forces in Syria to assist the Syrian regime. Notwithstanding, the Commonwealth did not list Hezbollah as a terrorist organisation. In my opinion, it would introduce confusion into the area of anti-terrorism if the Court were to reach a different conclusion when considering the meaning of a provision in anti-terrorist legislation which is directed to the same end.

35. [59]

    It follows also that AMAL, which is at one remove, is also not an organisation that supports terrorist acts or violent extremism. The State submitted that it should be viewed in the same way Hezbollah was viewed because it was prepared, when necessary, to use its militia to support Hezbollah when its own interests were threatened. Dr Shanahan has cited only one occasion where AMAL’s militia joined with that of Hezbollah, in the take over of West Beirut in May 2008. AMAL is not, and has never been, a proscribed terrorist organisation by the Commonwealth. Nor was there any evidence that any of Australia’s allies had identified it as a terrorist organisation.

36. [60]

    The State, therefore, fails to show that the defendant has made any statement or has carried out any activity advocating support for any terrorist act or violent extremism. In particular, the images or symbols, including flags, displayed by him on his body, on his Facebook page and in his house are not associated with an organisation that supports terrorist acts or violent extremism. The defendant is not, in that way, a convicted NSW terrorism activity offender.

37. [61]

    On that basis, the application must be dismissed.

38. [62]

    Whilst strictly unnecessary to do so, in deference to the submissions made concerning whether the defendant poses an unacceptable risk of committing a serious terrorism offence, I shall assume that, contrary to my earlier findings, the defendant is a convicted NSW terrorism activity offender on the basis that, at least, Hezbollah was an organisation that supports terrorist acts or violent extremism, and consider whether the defendant poses an unacceptable risk.

39. [63]

    Although the State did not specify in its summons or in any particulars on which serious terrorism offence it relied (see Naaman (No 2) at [39]), it ultimately pointed to the offence under s 101.1(1) of the Criminal Code, of engaging in a terrorist act as defined. The State submitted that the act would be done with the intention of intimidating a section of the public. `The State relied upon the report of Ms Czerkies in relation to the issue of risk. It also relied on the answer to one question asked of Dr Shanahan, to which I will return in due course,

40. [64]

    Ms Czerkies carried out a risk assessment of the defendant although she qualified her conclusions by noting that the defendant had not been interviewed for the purpose of her report and that her assessment was based on documents she had reviewed. In that context she said:

41. [65]

    Ms Czerkies drew attention to the defendant’s clothing choices, tattoos, use of social media and association as showing that he may endorse violence within a political context. That evidence was objected to as not being based on Ms Czerkies’ expertise, but I am satisfied that is so based.

42. [66]

    Ms Czerkies said, fairly, however:

43. [67]

    The defendant objected to various parts of Ms Czerkies’ report. That raised the issue of whether the whole report was nevertheless admissible by virtue of section 61 of the THRO Act and because it formed part of the supporting documentation (defined in s 4 as meaning, relevantly, the documentation referred to in s 23(3)), or whether objections in accordance with the rules of evidence could be made and upheld. Section 50 of the THRO Act provides:

44. [68]

    Section 50(2) sits somewhat uneasily with s 56 of the Evidence Act 1995 (NSW) which makes relevance the basis for admissibility. The result may be that evidence in a document otherwise admissible under s 61 will be found to have little or no probative value if it is not relevant.

45. [69]

    The first objection taken was to paragraphs 86 to 94, on the basis that those assessments were not relevant to the risk of the defendant committing a serious terrorism offence. In my opinion, an assessment of the likelihood of the defendant committing violent offences is likely to inform the ultimate conclusion about the risk of the defendant committing a serious terrorism offence.

46. [70]

    In terms of general risk assessment (as opposed to violent extremism) Ms Czerkies said the defendant had been administered the Level of Service Inventory-Revised (LSI-R) when he was in the community on 15 July 2019. His score of 34 out of a possible 54 was assessed as medium/high risk. The LSI-R Is a good predictor of general reoffending and a modest predictor of violence. On the Violence Risk Scale (VRS) the defendant’s risk of violence fell within the high category of risk. The VRS is an actuarial risk assessment tool specifically developed to assess the risk of violence for forensic clients, in particular, those who are being considered for release from institutions to the community after a period of treatment.

47. [71]

    Ms Czerties said that the process of risk assessment of violent extremism or politically motivated violence is comparatively new when compared to the risk assessment for general, violent and sexual offending behaviours. The frequency of violent extremism or politically motivated violence is significantly less than ordinary crime so that the sample size of people who actually engage in terrorist acts will never be large enough to allow the statistical power needed to determine the optimal quantitative combination of risk factor scores or to generate a final estimate of risk that does not rely in substantial part on clinical judgment. The assessment of risk of violent extremism cannot be anchored in statistical probabilities. Rather the overall risk judgment is based on the clinician's assessment of the available information at the time of assessment.

48. [72]

    The two current protocols are the Violent Extremism Risk Assessment - version 2 Revised (VERA-2R) and the TRAP-18.

49. [73]

    The VERA-2R while initially designed for use with offenders with a past or current charge or conviction of violent extremism, politically motivated violence or terrorism-related offences, is also applicable to persons who have been identified as a 'possible concern' and referred to intervention programs.

50. [74]

    The TRAP-18 is not an actuarial measure of violence risk, in that items are not scored to determine a level of risk. Rather, it was developed to assist in structuring a narrative pertinent to a threat assessment of a person of concern for engaging in lone actor terrorism activity.

51. [75]

    Based on the file information available to Ms Czerkies, the defendant’s overall risk profile on the VERA-2R was assessed as being in the moderate to high range.

52. [76]

    Ms Czerkies administered the TRAP-18 protocol on the file information. The TRAP-18 includes a set of eight warning factors that were developed to identify patters of proximal risk for intended or targeted violence, and a set of ten distal characteristics derived from empirical and theoretical research on lone actor terrorist that have been designed to capture the individual underlying motivations and influences.

53. [77]

    Ms Czerkies found evidence of at least four proximal indicators and seven distal characteristics which appeared to have remained apparent for a significant period of time. When dealing with the distal characteristics, Ms Czerkies noted:

54. [78]

    This passage was objected to by the defendant as speculation not based on Ms Czerkies’ expertise. In my opinion, little probative value should be accorded to this passage. To the extent that the first two sentences are consistent with her at paragraph 100 of her report, they seem to emphasise that very little is known about the defendant’s ideology or political orientation except that he supports AMAL. Moreover, if Ms Czerkies is suggesting that AMAL is a terrorist organisation, then there is no evidence to support that view. She otherwise does not say what the terrorist organisation is, although it may be Hezbollah. But as she acknowledges, nothing is known about that support or his “group connections”, whatever the detail of that is. That is particularly relevant where Hezbollah is a political party in the government of Lebanon and not a group attempting to take over the government by force.

55. [79]

    Ms Czerkies’ conclusions are these:

56. [80]

    One of the questions asked of Dr Shanahan was:

57. [81]

    Dr Shanahan answered:

58. [82]

    The defendant objected to those paragraphs on the basis that the opinion was not based on Dr Shanahan’s expertise. The defendant submitted that Dr Shanahan’s report did not form part of the “supporting documentation” and was, therefore, subject to the usual rules of evidence for admissibility. The State sought to support its admissibility on the basis of s 25(3)(l) which provides:

59. [83]

    In her report at paragraph 97, Ms Czerkies drew attention to Dr Shanahan’s conclusion that the defendant supports a militarised form of Shi’a political expression. That part of Ms Czerkies’ report was objected to because she had relied on an inadmissible section of Dr Shanahan’s report.

60. [84]

    Dr Shanahan should not have been asked question 8. He is an acknowledged expert on the matters set out in paragraphs 1 to 5 of his report. He is not a psychologist or a psychiatrist. A psychologist or psychiatrist may be able to express a professional opinion about whether they think a person holds certain beliefs, but it is ultimately for the Court’s determination at a final hearing whether that is so. A conclusion by a psychologist that a person holds a particular belief is not a “matter alleged” which if proved at a final hearing justifies the making of an extended supervision order.

61. [85]

    The State ultimately indicated that it relied on Dr Shanahan’s report in respect of a determination of the s 10 matter and not on the question of whether there was an unacceptable risk. I have considerable doubt that Dr Shanahan’s report forms part of the supporting documentation for the purposes of s 23. It would only fall within s 25(3)(l) if Dr Shanahan was permitted to express an opinion about the defendant’s belief, and he is not so permitted.

62. [86]

    I consider that paragraphs 43 and 44, and the last sentence of paragraph 39 (which is in similar terms) are inadmissible. If his report forms part of the supporting documentation, I would accord it little probative value. Similarly, Ms Czerkies’ reference to, and her seeming adoption of, Dr Shanahan’s conclusion in that regard is of no probative value.

63. [87]

    The State submitted that the following matters were directly relevant to establishing a risk of violence by the defendant done with the requisite intention emphasised by the Court of Appeal in Naaman (No. 2) at [39], [63]-[66] and [69]-[70]:

64. [88]

    In Naaman (No. 2) the Court of Appeal discussed what needed to be shown in relation to an offence created by s 101.1(1) of the Criminal Code. The Court said:

65. [89]

    The defendant in Naaman was in many respects similar to the defendant in the present case. He had mental illness issues but, unlike the defendant in the present case, had also made some threats, whether joking or otherwise, which might have been interpreted as support for terrorism and an intention to carry out a terrorist act.

66. [90]

    The Court of Appeal said:

67. [91]

    Much the same can be said in the present case.

68. [92]

    There is no doubt that the defendant has been convicted of a number of offences of violence both as a juvenile and as an adult. However there was no evidence that any of the violence was done with the intention of advancing a political, religious or ideological cause. In the same way, there is no evidence that any of the violence is done with the intention of coercing or influencing by intimidation a section of the public. For the offence to amount to a terrorism offence both of those requirements must be met.

69. [93]

    Nothing in the evidence suggests that any violence which the defendant might be taken to have threatened was with the intention of advancing a political, religious or ideological cause. The past violence had no such connection. Whilst I accept that there is certainly a risk of future violence, there is nothing to suggest that it will occur with the intentions contained in paragraphs (b) and (c) of the definition of terrorist act. Some of the past violence has been defensive as a response to the defendant’s delusional and paranoid beliefs about the police.

70. [94]

    There is no doubt that the defendant has serious mental health issues. The State submitted that those issues made it more likely that there was an unacceptable risk. However, those mental health issues may also explain or throw light on the defendant’s behaviour, both in committing the offences he has and expressing the views that he has in relation to violence and other matters. For example, it is now known without any doubt that, contrary to what the defendant wanted to claim to the police about the methodology of bombing because he was in Beirut at the time in 2013, the material he provided to the police was no more than was in the public domain. To the extent that the defendant was not delusional in making the claim that he did, it has all the hallmarks of a person trying to big note themselves. In the absence of any other evidence suggesting that the defendant belongs to the AMAL movement or has connections to those in authority in it, the conversation set out at [32] above must be seen in the same light.

71. [95]

    In Tillman, the Court of Appeal said of s 27 of the CHRO Act (the equivalent of s 54 of the THRO Act) at [39]:

72. [96]

    The State principally relies on Ms Czerkies’ conclusions derived from her application of the VERA-2R and the TRAP-18 protocols. Those conclusions must be seen in the light of two matters referred to by Ms Czerkies. First, she made the assessments without examining the defendant. Secondly, and perhaps as a result of the first matter she could neither identify the content of his political orientation nor the extent to which he endorsed or condoned violence within a political context. Those two matters go to the heart of the onus of proof, namely, that the Court is satisfied to a high degree of probability.

73. [97]

    The first matter is of some significance when Ms Czerkies acknowledges, as I noted at [71] above, that the statistical power needed to generate a final estimate of risk will not be enough without substantial reliance on clinical judgment. Further, Ms Czerkies’ inability to reach a conclusion on the second matter I have identified, leaves the evidence of essential matters in a deficient state.

74. [98]

    If the matters alleged, being Ms Czerkies’ conclusions based on her application of the two protocols, were proved, the making of an extended supervision order would not be justified because the Court could not be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence. Accordingly, even if I had been satisfied that the defendant was a convicted NSW terrorism activity offender, I would have dismissed the application.

Orders

1. [99]

   I make the following orders:

   1. (1)

      Summons dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.