State of New South Wales v Ibrahim (Final)

By a summons filed on 8 December 2020, the State of New South Wales (“the State”) sought, as final orders, an extended supervision order (“ESO”) for a period of 3 years from the date of the making of any such order pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”) in respect of Mr Monzor Ibrahim.

The State also sought an order pursuant to s 29(1) of the THRO Act that Mr Ibrahim be directed to comply with the conditions set out in the Schedule to the summons (“the Schedule”) for the period of the ESO.

On 8 February 2021, after a preliminary hearing, R A Hulme J, made orders appointing two experts to conduct examinations of Mr Ibrahim and prepare reports of those examinations. His Honour ordered Mr Ibrahim be the subject of an interim supervision order (“ISO”) for a period of 28 days commencing on 21 February 2021. The ISO was renewed by Bellew J and the Court as presently constituted. The ISO was operative as at the day of this Court making a ruling on 20 May 2021.

The matter was listed for hearing on 26 April 2021 with a one day estimate. Notwithstanding that estimate, and the fact the ISO may not have been renewed beyond 21 May 2021, the matter was not concluded on that day and was listed for further hearing on 14 May 2021. On that day, the evidence was completed and senior counsel for the State, Ms K Stern SC, who appeared with Ms A Zheng of counsel, made short final oral submissions supplemented by an “Index of Evidence Relied upon by the State of New South Wales” (“the State’s Index Submissions”). The State also produced a document identifying and comparing the respective positions of the parties as to conditions attaching to the ESO, if an ESO was to be made (marked Ex 8). Counsel for Mr Ibrahim, Ms P David, elected to not make oral submissions but rather file further comprehensive written submissions incorporating intended oral submissions. This was followed by a further reply by the State (I will return to the course of written submissions below). The Court made orders on 20 May 2021.

By the final orders of the Court, the Court granted the State’s application for an ESO for a period of 3 years from the date of the making of the order and directed Mr Ibrahim to comply with the conditions set out in the Schedule as varied by the order of the Court. The Court indicated that reasons would be provided in due course.

These are the reasons for the making of those orders.

There were two issues that predominated the proceedings, namely:

I will return to my consideration of the predominant issues, together with the further issues identified below, following a discussion of the relevant statutory regime below.

There were three further issues identified by Mr Ibrahim.

Firstly, if the Court was satisfied that the preconditions to the making of an ESO were met, Mr Ibrahim posed the question as to whether the Court should exercise its discretion not to make such an order. Counsel for Mr Ibrahim contended, inter alia, that an ESO should not be made because it would represent a significant imposition on Mr Ibrahim’s liberty and was unjustifiably onerous or intrusive given the circumstances of Mr Ibrahim’s case, namely, that he was a mentally ill man with impaired psychosocial functioning.

It was also submitted that Mr Ibrahim was only a risk of committing a serious terrorism offence (and, in that respect, it was contended, not a high risk) when he is mentally unwell. Therefore, the appropriate means to manage Mr Ibrahim was through the maintenance and continuation of his psychiatric treatment and his “Community Mental Health Treatment team”. Reliance was placed on Mr Ibrahim being subject to an existing Community Treatment Order (“CTO”) at the time of the application before the Court. (That matter also operated with respect to the second predominant issue).

Secondly, Mr Ibrahim submitted that if an ESO was made, it should be no longer than one year, which period should include the period he had already been the subject of an ISO.

Thirdly, there was a dispute as to the conditions to be imposed for the purposes of s 29(1) of the THRO Act in the event that the Court exercised its discretion and made an ESO. That dispute originally extended to all conditions proposed in the Schedule. However, later the contest as to conditions to be imposed if an ESO was to be made were reduced. The respective positions of the parties, as earlier mentioned, were set out in a comparative table marked Ex 8.

The written submissions provided to the Court in relation to this matter were extensive, consisting of a total of 221 pages. As at the time of closing oral submissions, the written submissions before the Court were as follows:

Following the close of evidence, the parties filed further written submissions, which were relied upon in addition to or in conjunction with submissions earlier filed, namely:

In accordance with the orders made by R A Hulme J on 8 February 2021, Mr Ibrahim was examined by Dr Sharon Klamer, forensic psychologist, and Dr Sathish Dayalan, forensic psychiatrist, on 18 March 2021 and 19 March 2021 respectively (collectively, “the court appointed experts”).

The court appointed experts produced the following reports:

The court appointed experts were required for cross-examination.

The State relied on the following evidence:

Dr Shanahan was required for cross-examination.

Mr Ibrahim relied upon the affidavit of Dr Clarke Jones, dated 11 April 2021 (“the Jones Report”). At the hearing of the matter, his evidence was taken as concurrent evidence with that of Dr Shanahan. That concurrent evidence occurred during the course of the final hearing of the matter on 26 April 2021 (upon a one day estimate for the proceedings).

After the cross-examination of Dr Jones by senior counsel for the State (and at the conclusion of the hearing on 26 April 2021), counsel for Mr Ibrahim identified an intention to seek to rely upon further expert evidence, then stating that that evidence was sought to be led in order to deal with “the accuracy” or otherwise of the “verses” to which Dr Shanahan had referred, namely, references to, inter alia, the Qur’an.

That was the first occasion that Mr Ibrahim had indicated an intention to call further expert evidence. I accept the submission of the State that such an intention had not even been foreshadowed until after the conclusion of Dr Jones’ cross-examination. Mr Ibrahim was required to file a notice of motion as to the further expert evidence he intended to lead (at this stage the application to be made had not been identified).

By a notice of motion filed 29 April 2021, Mr Ibrahim sought leave to file an affidavit of Mr Saad Fariwala, dated 28 April 2021 (“the Fariwala Report”).

The Court ultimately ruled that the notice of motion should be dismissed (and in doing so, treated the notice of motion as, in substance, being an application for leave to lead the further expert evidence in question). It was indicated that reasons would be given for that decision in conjunction with the primary decision of the Court in relation to the summons brought by the State. I propose to provide those reasons at this juncture as, in some respects, those reasons cast a light upon the predominant issues in the proceedings.

Issues of lateness and prejudice could be readily identified in the context of the notice of motion as could a further issue as to a failure of the Fariwala Report to satisfy the requirements of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) (see r 31.23). In my view, the application made on behalf of Mr Ibrahim occurred in circumstances where, as the State put it, Dr Jones’ evidence did not ultimately withstand the scrutiny of cross-examination as to critical aspects of Mr Ibrahim’s case in the midst of the concurrent evidence (which process occurred by consent) of Dr Shanahan and Dr Jones. The further expert evidence purported to traverse the same ground as covered by Dr Shanahan and Dr Jones.

However, I propose to commence with a contention advanced by the State that leave should not be granted because the application to admit the Fariwala Report was futile; a contention which, in my view, was correct. There were two significant issues with the Fariwala Report being admitted into evidence:

The Fariwala Report purported to answer six questions, based upon the opinion of Mr Fariwala, namely:

It is important to observe that, in providing the answers to those questions, and as conceded by counsel for Mr Ibrahim, Mr Fariwala was not, in fact, provided with any statements made by Mr Ibrahim as such. The Fariwala Report was responsive to Dr Shanahan’s First Report, even though it may be noted that Dr Shanahan extracted some of Mr Ibrahim’s statements in his reports. It follows that the State is correct to submit that the probative value of the Fariwala Report was to be judged insofar as it could rationally affect the Court’s assessment of Dr Shanahan’s evidence. It is in this respect that the Fariwala Report was misconceived.

The Fariwala Report essentially addressed the issue of whether Dr Shanahan had the appropriate expertise in the interpretation and scholarship of the Islamic text, the Qur’an and the Hadith. However, that approach misunderstood Dr Shanahan’s evidence, which consideration is reflected in some of the arguments otherwise advanced on behalf of Mr Ibrahim with respect to the first predominant issue in these proceedings.

Dr Shanahan did not purport to be, an expert in the interpretation and scholarship of the Qur’an and the Hadith. Rather, Dr Shanahan’s expertise was in Islamic Studies and the areas of political Islam and Islamic terrorist organisations (see Dr Shanahan’s First Report at paras 2-5). Dr Shanahan was well qualified to give that evidence.

Dr Shanahan’s First Report was not concerned with the analysis of Mr Ibrahim’s statements and writings as matters of religious interpretation. The two key questions addressed by Dr Shanahan in his first report were questions that squarely arise under ss 10(1)(c)(i) and 10(1A)(a)(iii) of the THRO Act, namely:

The first key question was directed at a comparison of Mr Ibrahim’s use of language and the threats of violence promoted by, inter alia, certain terrorist organisations. Dr Shanahan identified expressions used in Mr Ibrahim’s writing that he considered was connected to or drew upon certain Qur’anic references (in particular, the use of the term of “hypocrites” in a derogatory manner) (see Dr Shanahan’s First Report at paras 13-15). Dr Shanahan then opined that this discourse also featured in the discourse of Al-Qa’ida and Islamic State, two Islamic terrorist organisations (see Dr Shanahan’s First Report at paras 17-19). These are opinions with which Dr Jones agreed in cross-examination. These were not opinions as to how those aspects of the Qur’an should be interpreted within the Islamic faith, or whether Mr Ibrahim or those terrorist organisations used terms such as “hypocrite” consistently with a theologically sound interpretation of the Qur’an.

The Fariwala Report did not engage with those opinions. Its critique was of Dr Shanahan’s purported interpretation of a number of the religious elements identified by Dr Shanahan (see Fariwala Report at paras 38-49 regarding “hypocrisy” within Islam). The emphasis in the Fariwala Report appears to be that the concept of hypocrisy in Islam, whilst often a “pejorative one”, “does not however necessitate a vitriolic discourse or connection to violent deviant splinter groups like ISIS” (see the Fariwala Report at para 43). Whilst that notion may be accepted for the purposes of the ruling on the motion, the observation does not engage with the issue as to whether the discourse of hypocrisy had, in fact, been used in that way by terrorist organisations such as Islamic State, and whether that was language used by Mr Ibrahim, which were the questions to which Dr Shanahan’s First Report was directed. In that respect, in my view, the Fariwala Report simply did not engage with Dr Shanahan’s evidence.

The second key question in Dr Shanahan’s First Report was directed at an assessment of whether Mr Ibrahim’s statements advocated support for any terrorist act or violent extremism. Dr Shanahan identified a number of statements made by Mr Ibrahim that advocated for violence using Islamic terminology (with which Dr Jones agreed), and then proceeded to explain, based on his expertise in Islamic studies, what a number of those references were (see Dr Shanahan’s First Report at para 21). Dr Shanahan’s opinion was that each identified statement supported violent extremism because of the link between violence and an expressed religious view. Whilst his opinion was supported by his knowledge of Qur’anic references, that was knowledge of the Qur’an as a text and Dr Shanahan did not purport to rely upon any theological understanding and interpretation of the Qur’an.

I agree with the submission of the State that the distinction is made clear by a letter written by Mr Ibrahim on 30 September 2009, to which I will later refer, wherein Mr Ibrahim refers to the “Surate al fil”. Dr Shanahan explained that that was a reference to a Qur’anic verse that told of the violent deaths of those who tried to invade Mecca. With that understanding of the Qur’anic reference, Dr Shanahan opined that Mr Ibrahim appeared to be advocating for violent deaths of certain individuals based on an extremist interpretation of Islamic sources. Mr Fariwala’s response to that point appeared to be at paras 51-52 of the Fariwala Report (although no paragraph references to Dr Shanahan’s reports were given by Mr Fariwala). The commentary there, namely, identification that that was a well-known chapter in the Qur’an, did not suggest that Dr Shanahan was incorrect in his description of the “Surate al fil”, or that he had misunderstood it. Mr Fariwala’s opinion, in that regard, could not rationally affect the assessment of Dr Shanahan’s opinion regarding how Mr Ibrahim’s reference to the “Surate al fil” should be characterised.

There was an element of the Fariwala Report which may have been potentially relevant insofar as it concerned how well known some of the passages of the Qur’an used by Mr Ibrahim were within the Islamic community. However, that issue connected to part of the opinion of Dr Shanahan, which was expressly withdrawn by the State, namely, that Mr Ibrahim has a higher level of understanding of textual material than a normal observant Muslim.

The Fariwala Report purported to challenge Dr Shanahan’s opinion that Mr Ibrahim “appeared to have sufficient knowledge of particularised Islamic textual sources and history to be able to link threats of violence with some form of Islamic textual justification”. More particularly, nothing in the Fariwala Report suggested that the matters identified by Dr Shanahan were not in fact Islamic religious references, or that Mr Ibrahim either did not have knowledge of those references or did not use those references in his statements, which were matters that could rationally bear upon whether the Court accepted Dr Shanahan’s opinion.

Whilst the Fariwala Report did focus upon the theological interpretation of various Islamic religious texts it did not, therefore, address the questions raised by Dr Shanahan. Further, whilst Mr Fariwala plainly did have qualifications and training in respect of traditional Islamic religious sciences, his expertise does not extend to (whether as a matter of training, study or experience) any specialised knowledge of political Islam, political science, extremist violence or the understanding of Islamic terrorist organisations and more particularly, the discourse utilised by those organisations and their adherence.

Before turning to procedural considerations as such, two further matters may be identified in this context:

The State also contended that the evidence sought to be led in the Fariwala Report sought to contradict aspects of Dr Jones’ evidence under cross-examination. One aspect, in that respect, was the apparent criticisms of Dr Shanahan’s evidence, agreed to by Dr Jones, about the term “hypocrites” (see the Fariwala Report at paras 39, 43 and 56). There were many other aspects of Dr Jones’ evidence which were criticised (directly or indirectly) in the Fariwala Report as follows:

Having regard to that last mentioned discussion, as to the criticisms (directly or indirectly) contained in the Fariwala Report of Dr Jones’ evidence, in my view, it was not appropriate to permit, in the midst of the concurrent evidence of Dr Shanahan and Dr Jones, a further expert report to be filed and relied upon which sought to contradict the evidence of Mr Ibrahim’s own expert given under cross-examination, that having been the first occasion on which such evidence was even foreshadowed. The permission to adopt that approach would stand contrary to the proper control and restricting of the use of expert evidence, the interests in finality of litigation and orderly case management (even allowing in that latter respect some greater latitude in this case because of the restricted timelines associated with the matter).

In Chapman v Chapman [2007] NSWSC 1109 (“Chapman”) at [4], Brereton J held that r 31.19 of the UCPR had the effect that, unless the Court otherwise orders, expert evidence may not be adduced at trial unless directions have been sought “promptly” under r 31.19 and, if directions are given, other than in accordance with those directions. “Promptly” was said to mean “as soon as it became apparent to a party that he or she may need to adduce expert evidence” and, his Honour further noted, “[t]hat obligation arises before an expert is retained, let alone before the expert provides a report”: at [6]. Foremost amongst the purposes of this rule was that it enabled the Court to control the giving of expert evidence and restrict expert evidence to that which is reasonably required to resolve the proceedings: at [7].

Similarly, in Hrdavec v State of New South Wales [2018] NSWSC 1081 (“Hrdavec”), Fagan J considered a late application to serve expert evidence. His Honour referred to Chapman at [6]-[7] (see Hrdavec at [6]-[8]) and then said that, in circumstances where an expert report was served significantly late (at [9]):

In Hrdavec, as in this matter, there was no explanation for the delay. Accordingly, the Court refused to permit the expert report in question to be adduced. The same approach is applicable here where the matter was part heard and the cross-examination of the expert witnesses had commenced and was substantially completed.

Those procedural considerations obviously attract issues concerning lateness and prejudice. Those concepts require some further context.

The relevant procedural background to the foreshadowed application and notice of motion was as follows:

Further, in my view the grant of leave to file and rely upon the Fariwala Report at the stage of the proceedings where it was introduced would have caused real prejudice to the State.

In order to accord procedural fairness, Dr Shanahan must have an opportunity to respond to the Fariwala Report. Sufficient time needed to be provided to Dr Shanahan to provide (albeit within strict limits) a considered response including making any necessary enquiries.

Whilst the notice of motion was not listed until 14 May 2021, a procedure was identified which would have overcome that apparent difficulty. The State sought consent to the Fariwala Report being provided to Dr Shanahan in advance of the hearing so as to overcome the practical difficulties of Dr Shanahan being able to respond (assuming he was able to respond upon the receipt of that material). Mr Ibrahim did not consent to that procedure and the Court thereby determined not to adopt the procedure sought by the State. It may be further noted that, if Dr Shanahan was not in a position to meet the Fariwala Report, then the State may have sought to call further evidence.

It followed then that the question of prejudice then came to be considered on 20 May 2021, the second day of the hearing, in the circumstances of the prejudice then operating upon the State including the time constraints under which the proceedings were operating (the ISO ceased to operate from 21 May 2021).

The final factor in the ruling related to the Expert Witness Code of Conduct in Sch 7 to the UCPR (“the Code”) was far from the most significant consideration in the disposition of the notice of motion. However, the State’s submissions, in that respect, were not without substance.

The Fariwala Report did not refer to Mr Fariwala having been provided with the Code, nor to Mr Fariwala having reviewed and complied with the Code in the preparation of the Fariwala Report.

For this reason, it was contended by the State that the Fariwala Report was not prepared in accordance with r 31.23 of the UCPR and should not be admitted in evidence: r 31.23(3), unless the Court otherwise ordered. Oral evidence should also not be received from Mr Fariwala unless the Court was otherwise satisfied that Mr Fariwala had read the Code and agreed to be bound by it: r 31.23(4).

The requirement to satisfy the Code is the substantive consideration. The Court must be satisfied that the expert report in question was, in fact, prepared in compliance with the Code (see First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 at [6]-[11] and the authorities summarised therein). In this case, there was no further evidence called from Mr Fariwala addressing whether he had, in fact, read and complied with the Code.

The primary object of the THRO Act is to “provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community”: see s 3. Another object of the THRO Act is “to encourage [such] offenders to undertake rehabilitation”. It follows that the orders that may be made under the THRO Act are protective, not punitive: see, by analogy, Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 345 ALR 669; [2017] NSWCA 189 (“Kamm”) at [113], [147].

As explained in State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 (“Naaman No 2”), the statutory preconditions for the making of an ESO are set out in s 20 of the THRO Act. They are as follows:

I will not turn to consider those preconditions, as they apply to Mr Ibrahim, seriatim.

Section 7 of the THRO Act defines an eligible offender as one who is:

A “NSW indictable offence” is defined in s 4(1) of the THRO Act to be an offence against the law of the State for which proceedings may be taken on indictment.

Mr Ibrahim is an “eligible offender” within the meaning of s 7 because:

The second precondition is met because Mr Ibrahim was “under supervision … under an existing [ISO]”, specifically the ISO made under the THRO Act on 8 February 2021, which was renewed on 17 March 2021 and further renewed on 14 April 2021.

The second precondition was additionally satisfied because, at the time of the State’s filing of an application for an ESO on 8 December 2020, Mr Ibrahim was in custody serving a sentence of imprisonment for the index offence (a NSW indictable offence).

Part 2 of the THRO Act concerns “Extended Supervision Orders”. Section 23 of Div 2.3 of that Part sets out the requirements with respect to an application made by the State for an ESO. The State’s application meets the requirements of s 23 of the THRO Act because:

Section 20(c) of the THRO Act provides as follows:

As mentioned earlier here an issue is whether Mr Ibrahim was caught by the provisions of s 10(1)(c)(i) or s 10(1A)(a)(iii).

The term “convicted NSW terrorism activity offender” is relevantly defined in s 10(1) of the THRO Act as follows:

The THRO Act contains s 10(1A), which is a “deeming provision” that brings certain conduct within the terms of s 10(1)(c) without limiting the conduct which might otherwise fall within the subsection: Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 (“Cheema”) at [17], [63]-[65]. Section 10(1A) relevantly provides:

Relevant to the consideration of s 10(1)(c) is the definition of the words used in the subsection, namely:

The THRO Act does not exhaustingly define “advocating” as used in s 10(1)(c): State of New South Wales v Dunn (a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 (“Dunn”) at [29] (per N Adams J).

Nonetheless, some additional observations may be made. Both s 10(1A)(a)(ii) and (iii) require that a comparison be made between the acts of the offender and the acts of a relevant person, group, organisation or ideology.

The expression “person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism” is found in both provisions. In Cheema, the Court rejected an argument that s 10(1A)(a)(ii) should be limited to using or displaying images or symbols which could reasonably be construed as advocating support for terrorist acts or violent extremism; or that the subjective intention of the person using or displaying the images or symbols should be imported into the subsection: see Cheema at [62]-[65], [82]-[85].

There is no requirement or specification in s 10(1A) as to when the relevant act of “advocacy” occurred. In Naaman No 2, there was evidence that the offender had placed a poster of Osama Bin Laden on his cell wall while in custody 17 years previously. Although it was unnecessary to determine the point, the Court of Appeal stated that, on one view, the THRO Act mandated that the offender was a “convicted NSW terrorism activity offender” by reason of s 10(1A)(a)(ii): at [26]. Further, in Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [58], Bathurst CJ accepted that “the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism offender as a result of historical matters”.

Section 10(2) makes clear that s 10(1)(c) applies “regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned”. In other words, s 10(1)(c) “will apply irrespective of whether a person has been convicted of an offence connected with terrorism”: Naaman No 2 at [22].

By s 4 of the THRO Act, the term “terrorist act”, as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code Act 1995 (Cth) (“Criminal Code”). There, the term is defined as follows (see s 100.1):

Subsections (2) and (3) referred to in the above definition read as follows:

In R v Lodhi [2006] NSWSC 584 at [75], Whealy J observed that the definition of “terrorist act” in the Criminal Code “postulates an action or threat of action of the widest possible kind”.

Likewise, the Court of Appeal has described the term “terrorist act” as “very broadly defined”: see Naaman No 2 at [27]. In State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 (“Cheema No 1”) at [187], Johnson J observed that the “definition of ‘terrorist act’ includes a wide range of conduct extending to preparatory offences and other conduct falling short of the actual commission of terrorist acts which cause injury to persons or damage to property”, noting that “the legislative intention underlying the wide range of conduct included in terrorist offences, being the protection of the community”.

Paragraphs (b) and (c) of the definition in s 100.1 of the Criminal Code refer to certain actions or threats of action done with a particular “intention”. The concept of “intention” is addressed in s 5.2 of the Criminal Code as follows:

In State of NSW v Ceissman [2018] NSWSC 508 (“Ceissman”) at [78], Rothman J observed that “ordinarily, once action, not described in (3) of the definition [of terrorist act in the Criminal Code] is performed as part of, or in furtherance of, a broader political, religious, or ideological course, then the more probable inference is that it is performed with [the necessary intention under the Criminal Code]”.

The term “violent extremism” is not defined in the THRO Act. It was added to s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines “extremism” as “[t]he holding of extreme political or religious views; fanaticism”. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views: State of New South Wales v Elmir [2019] NSWSC 1867 at [34]. In my view, the inclusion of the term “violent extremism” was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, violent extremism does not necessarily require any intention to advance political, religious or ideological causes or influence government or the public by intimidation.

The juxtaposition of the concept “violent extremism” with the concept of “terrorist act” indicates that the concept of violent extremism concerned some acts which were separate and distinct from those which fall within the definition of a terrorist act, although plainly the two concepts are not mutually exclusive.

I will refer to the principles applied to this provision in dealing with the question as to whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an ESO. I shall, however, firstly, deal with the issue of whether Mr Ibrahim a “convicted NSW terrorism activity offender’’.

Mr Ibrahim contended that he had not made any statement or carried out any other activity that otherwise advocated support for any terrorist acts or violent extremism of the kind that fell within the ambit of s 10(1A)(a)(iii) of the THRO Act “in combination with s 10(1)(c)”. In particular, it was contended that the Court could not be satisfied that any language used, or threats made, had either the character “of a kind that is promoted by a person, group of persons or organisations” or “an ideology, that supports terrorist acts or violent extremism”.

In many respects, the case for Mr Ibrahim, as to this question, rests upon a contention that the evidence of Dr Jones should be preferred, either wholly or substantially, in preference to the expert of Dr Shanahan and, further, that Dr Shanahan’s evidence should be rejected as lacking the requisite expertise.

In Mr Ibrahim’s May Submissions, Mr Ibrahim sought to cast doubt upon Dr Shanahan’s opinion by reference to the opinions of Drs Dayalan and Klamer.

It may be noted that in Mr Ibrahim’s April Submissions, it was contended that the Court should reject Dr Shanahan’s evidence that Mr Ibrahim’s use of the Qur’an, Hadith and other Islamic references was indicative of someone with a higher level of understanding of Islamic textual material and should, rather, accept Dr Jones’ evidence that Mr Ibrahim had a low-level of Islamic and Qur’anic knowledge and Hadith knowledge. That issue dissipated, due to Dr Shanahan’s acceptance that Mr Ibrahim did not exhibit an understanding of those texts beyond a normal level of knowledge of textual material from an average Muslim. As a result, that issue fell away in Mr Ibrahim’s May Submission but it should be noted that Mr Ibrahim relied upon that concession as going to Dr Shanahan’s credit.

A related contention in Mr Ibrahim’s April Submissions was that Dr Shanahan had, in the course of expressing a view as to Mr Ibrahim’s understanding of Islamic textual material, conflated concepts of Islam and terrorism. It was submitted that whether Mr Ibrahim had a normal observant Muslim’s knowledge or an average Muslim’s knowledge of that textual material had no bearing upon whether he supported terrorism or violent terrorism. Reliance was placed upon Dr Jones’ evidence that religiosity and religious participation can be associated with a reduction in criminal offending and anti-social behaviour as well as having other benefits in fostering an individual’s wellbeing.

Before turning to the full panoply of submissions advanced by Mr Ibrahim in Mr Ibrahim’s May Submissions, as to particular aspects of statements made by Mr Ibrahim (and their significance as to the resolution of this issue), it is appropriate to make some preliminary observations about those contentions, as follows:

It is ultimately a matter for the Court to determine, on the evidence, whether Mr Ibrahim is a convicted NSW terrorism activity offender either by virtue of the provisions of s 10(1A)(a)(iii) or s 10(1)(c)(i). The evidence relied upon by the State in support of its case, in that respect, is Dr Shanahan’s First Report and evidence at the hearing. The following conclusions may be derived on the basis of Dr Shanahan’s First Report:

The first opinion is consistent with the conclusion that Mr Ibrahim had made threats of the kind that fall within the ambit of s 10(1A)(a)(iii) of the THRO Act. The second opinion is consistent with statements falling within the ambit of s 10(1)(c)(i) of the THRO Act.

Dr Shanahan also observed that he was struck by how Mr Ibrahim was able to quote particular elements of the Qur’an to justify violent actions across a range of chapters and verses.

Although there is repetition with my earlier summary of Dr Jones’ concession in cross-examination, it is useful at this junction to recap on that evidence. Dr Jones agreed that:

I will return to Dr Shanahan’s conclusions, as referred to above, in the context of particular statements made by Mr Ibrahim identified below (referable to s 10(1A)(a)(iii) and s 10(1)(c)), but will first turn to a number of overarching proponents advanced by Mr Ibrahim in Mr Ibrahim’s May Submissions.

Mr Ibrahim’s contentions with respect to s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act are encapsulated in para 8 of Mr Ibrahim’s May Submissions, which submission is extracted below:

Counsel for Mr Ibrahim then expanded upon those contentions over some 18 further pages. I accept the submission of the State that, in substance, those submissions call for the wholesale rejection of Dr Shanahan’s opinion. I do not accept the contentions advanced by counsel for Mr Ibrahim, in that respect, partly due to my acceptance of Dr Shanahan’s evidence, but also because of the particular observations I will not make as to various aspects of Mr Ibrahim’s May Submissions (deriving from the submission in para 8, extracted above), together with the particular analysis I will later embark upon with respect to subject statements made by Mr Ibrahim that are referable to s 10(1A)(a)(iii) and or s 10(1)(c)(i).

Before turning to the particular statements, I will first direct attention to Mr Ibrahim’s May Submissions deriving from para 8 by reference to each of the sub-paragraphs (i)-(vi) (appearing therein), even though some proceed at a level of generality.

Mr Ibrahim’s submission as to para 8(i) consisted of the following propositions:

There are two further difficulties with the contention by Mr Ibrahim that the statements made by him were really borne of delusions or disorganised thought processes associated with a mentally unwell person as opposed to any statements which may gain traction under s 10(1)(c)(i) or s 10(1A)(a)(iii). This is because:

Mr Ibrahim then makes the submission at paras 15-51 of Mr Ibrahim’s May Submissions dealing with the question of whether the language used by Mr Ibrahim is Islamic eschatology. It was submitted that Mr Ibrahim suffers from schizophrenia and sometimes infuses his language with religious eschatological themes when making threats in pursuit of his personal agenda when in a deluded state.

Counsel for Mr Ibrahim advanced the following broad submissions in support of that contention:

Mr Ibrahim then submitted that the language in statements relied upon by the State from Dr Shanahan’s reports were words that are commonly quoted from the Qur’an and the language used by Mr Ibrahim was of an eschatological character. It was submitted, in that respect, that the language used did no more than mirror the language of the Qur’an and that no weight should be given to any suggestion advanced by Dr Shanahan given that the language is commonly used discourse in the Islamic world.

Springing from that submission, counsel for Mr Ibrahim then made a lengthy submission traversing parts of Dr Shanahan’s evidence as follows:

Those submissions were followed by an analysis of the following:

In a large part, the contentions of Mr Ibrahim, in these respects, appear to be that there are alternative religious interpretations of the verses quoted by Mr Ibrahim in some of his writings, as analysed by Dr Shanahan. Further, in many respects, the contentions resurrect the contentions raised in the Fariwala Report which Mr Ibrahim sought to rely upon by the notice of motion filed on 21 April 2021 to which the Court refused leave (my reasons, in that respect, appear earlier in this judgment under the heading “Mr Ibrahim’s Notice of Motion”). Indeed, there was produced as an annexure to Mr Ibrahim’s May Submissions, Annexure D, which provided a lengthy comparison between Dr Shanahan’s First Report and the various unsourced content and commentary about Qur’anic verses.

As I have mentioned, whether or not the Qur’anic references identified by Dr Shanahan were also part of Islamic eschatology does not cast, in and of itself, any doubt on Dr Shanahan’s opinion. Mr Ibrahim’s contention was that there may be alternative religious interpretation of the verses quoted by Mr Ibrahim in some of his writings (as analysed by Dr Shanahan). These contentions fail for the same reasons as those articulated in the State’s Index Submissions in response to the Mr Ibrahim’s notice of motion (at paras 31-35). Whether or not any of the Qur’anic references are eschatological in nature cannot rationally challenge Dr Shanahan identification of those references as being sourced from the Qur’an, nor his opinion that those references are either being used in a manner consistent with that of Islamic terrorist groups (see at paras 17-19 of Dr Shanahan’s First Report) or used to advocate violence (see at para 21 of Dr Shanahan’s First Report).

In any event, as Dr Shanahan stated in his evidence, he did not accept that many of the texts to which Mr Ibrahim made reference were capable of being interpreted as Islamic eschatology. For example, he noted that the “Surate al fill” was not one, although the “Al-Dukhan” was. Dr Shanahan did not accept that Mr Ibrahim’s writing simply exhibited judgment day themes. There was no suggestion in the evidence that the term “hypocrites” is an eschatological term.

It may be noted that a submission was advanced by Mr Ibrahim that Dr Shanahan was simply repeating “something a particular extremist or terrorist group might repeat” and that this did not in and of itself support the notion that Mr Ibrahim supports violent extremism. However, that was not the effect of Dr Shanahan’s evidence, which I will return to below and discuss at length by reference to the statements made by Mr Ibrahim over time.

Mr Ibrahim’s evidence next turned to what appeared to be the topic identified in para 8(iii) of Mr Ibrahim’s May Submissions under the heading “Personal grievances not political or ideological ones”.

Under that heading, Mr Ibrahim made the following submissions:

The broad thrust of these propositions, namely, that Mr Ibrahim’s writings reflect a personal and not political agenda were put to Dr Shanahan in cross-examination and rejected by him. Dr Shanahan emphasised that Mr Ibrahim was “couching the language in peculiarly religious terms” and that the term “enemies of Islam” was a much broader threat that takes the violent language “out of the personal”.

It may also be observed, the fact Mr Ibrahim may have used violent language for personal reasons (if that may be inferred from his acts in January 2016), that does not render the statutory tests in s 10(1)(c)(i) and s 10(1A)(a)(iii) as inapplicable to Mr Ibrahim’s case. The question is, as I will discuss below, whether he has made statements which are caught by those statutory tests.

Lastly (aside from submissions made as to particular statements made by Mr Ibrahim), submissions were advanced under the heading “Defendant’s Islamic beliefs not extreme”.

The submissions advanced by Mr Ibrahim, in that respect, are extracted below:

I agree with the submission of the State that the proposition contained in para 58 of Mr Ibrahim’s submissions, extracted above, misdescribes the evidence of Dr Shanahan.

Although Dr Shanahan accepted that “generally” those who advocate violent extremism do not denounce their positions, he was very clear in stating that this depended “on the circumstances. Generally, no, but if there’s a greater aim to be achieved, it – it happens”. Further, he went on to observe:

I also agree with the submission of the State that Dr Shanahan’s evidence does not support the submission advanced on behalf of Mr Ibrahim, that simply because he described himself as not being a religious person, did not necessarily warrant a finding that he did not hold extreme views or would not engage in violent extremism.

For reasons I have earlier given, I do not consider that Dr Shanahan’s initial reliance upon Mr Ibrahim’s use of the Qur’an, Hadith and other Islamic references as being indicative of someone with a higher level understanding of Islamic textual material undermines his credit. It may be further noted, in that respect, that Dr Jones was taken in cross-examination to that part of report in which, in substance, he opined that the traits exhibited by Mr Ibrahim were inconsistent with that of a highly observant Muslim. However, in cross-examination, Dr Jones accepted that “Dr Shanahan is right, that those who have committed acts of terrorism have had tattoos, have taken drugs, so, yes I agree with him in that context”.

It follows that, for the variety of reasons mentioned above, that I do not accept Dr Shanahan’s expert opinions as to the statements made by Mr Ibrahim and their relationship to the tests in s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act should be rejected. That has a significant bearing upon the disposition of the question raised with respect to this precondition but it is ultimately necessary for the Court to consider the context of the expert opinions in the light of the statements made by Mr Ibrahim to which I will now turn under headings corresponding to the statutory tests under s 10(1A)(a)(iii) and s 10(1)(c), respectively.

In his report, Dr Shanahan identified Mr Ibrahim’s tendency to make threats of violence against people on the basis that they are “hypocrites” as a particular example of him making threats of violence of a kind promoted by groups that support terrorist acts or violent extremism.

According to Dr Shanahan, the term “hypocrites” (Arabic: “munafiqeen”) is a “pejorative one applied to Muslims who possess weak faith or who profess Islam while secretly working against it”. Further, “[t]he use of the term hypocrites in a derogatory manner and the making of threats against them have been a feature of the discourse of Al-Qa’ida and Islamic State” (both of which are obviously proscribed terrorist groups) (see also Criminal Code (Terrorist Organisation—Al-Qa’ida) Regulations 2019 (Cth); Criminal Code (Terrorist Organisation—Islamic State) Regulations 2020 (Cth)).

As explained by Dr Shanahan, examples of Mr Ibrahim using the term “hypocrites” in the context of threats of violence may be found in the letter that he sent to Ali Ibrahim from gaol on or about 22 September 2014.

The letter begins on page 1 with an account of Mr Ibrahim’s belief that corrective officers tried to kill him. Mr Ibrahim had a persistent persecutory belief system involving a conspiracy by the Australian Government (or “the government” generally) to harm him, including by falsely imprisoning him and then killing him, probably because of his religion. The letter then continues with threats against Australia, the Australian Government and various government officials. An extract of that letter appears below:

Then, as identified by Dr Shanahan, the letter contains repeated references to “hypocrites” in the context of threats of violence. The full text of the passages identified by Dr Shanahan are as follows:

Neither the opinions expressed by Dr Shanahan nor the significance of the language actually used by Mr Ibrahim is diminished by the proposition advanced by Dr Jones that a word such as “hypocrite” or “hypocrites” was commonly used in the English language or that the terms may be adopted due to their Qur’anic heritage. Whilst it may be accepted that Qur’anic verses are quoted by all Islamic groups and the fact of the use of them may not be evidence that proves advocacy for a terrorist group or organisation or violent extremism, Dr Shanahan’s analysis was undertaken in a particular context, namely, the significant number of the writings of Mr Ibrahim and their relationship to the use of that language or similar expressions by the persons, groups or organisations or ideologies referred to in s 10(1A)(a)(iii). As such, I have had regard to and accept the opinion of Dr Shanahan as to the Mr Ibrahim’s repeated use of “hypocrites” in the context of threats of violence.

I have earlier mentioned Mr Ibrahim’s submission regarding mental illness but as I have discussed above and will return to below, there are aspects of his writings which do not appear to contain such a connection. Further, the language, properly analysed, falls within the scope of the provisions here under consideration.

The following discussion concerns evidence which establishes that Mr Ibrahim has advocated support for terrorist acts or violent extremism where that latter expression extends to violence motivated by, or undertaken in furtherance of, extreme political or religious views. Dr Shanahan opined that statements of Mr Ibrahim, to which I will turn to under this heading, contained advocacy for violence justified by Islamic references.

Dr Shanahan’s opinion was that Mr Ibrahim divided the population into Muslims and non-Muslims/unbelievers/hypocrites, otherwise known as “the enemies of Islam”, and made threats of violence against individuals, the country, the government and people in authority which threats were said to be justified on religious grounds. By that analysis, Dr Shanahan opined that various statements of Mr Ibrahim are demonstrative of an extreme interpretation of Islam, which justified the killing of people perceived to be enemies of the faith.

I do not consider that evidence, for the reasons I have given, was diminished by cross-examination or by virtue of the challenges made to those opinions I have discussed above. I will now turn to particular examples in chronological order.

On or about 22 November 2004, while in custody, Mr Ibrahim wrote a letter to Zaky Mallah. Mr Ibrahim apparently met Mr Mallah in custody and maintained letter contact with him thereafter.

By way of context, Mr Mallah was at that time on remand, facing charges including two counts of doing an act in preparation for or in the planning of a terrorist act, contrary to s 101.6(1) of the Criminal Code. Those charges alleged that in September 2003 he had acquired a rifle and ammunition with the intention of killing Australian Security Intelligence Organisation (“ASIO”) or Department of Foreign Affairs and Trade (“DFAT”) officers, and that he had prepared photos and a video of himself in the nature of a “farewell” message to be played in the event of his martyrdom. He was also charged with recklessly making a threat to a person, to cause serious harm to a third person, being a Commonwealth public official, by reason of the status of that third person contrary to s 147.2 of the Criminal Code. This charge alleged that he had informed an undercover operative about a plan to enter a building and kill ASIO or DFAT officers.

In 2005, Mr Mallah was acquitted of the terrorism charges and pleaded guilty to the Commonwealth official charge. On 21 April 2005, he was sentenced by Wood CJ at CL to 2 years 6 months’ imprisonment: R v Mallah [2005] NSWSC 317 at [1], [11], [14] and [21].

A CSNSW Intelligence Report (number 1777.04) dated 22 November 2004 extracted the following from a letter sent by Mr Ibrahim to Mr Mallah:

The letter was written during a period of apparent stability in Mr Ibrahim’s mental health condition. Mr Ibrahim had entered custody in April 2002. In a report dated 12 October 2005, while Mr Ibrahim was still in custody, Professor David Greenberg noted that a review of Justice Health records showed that “over the past three and a half years he has been compliant with his psychiatric medication and his mental state has remained stable during this period”.

In relation to the letter to Mr Mallah, Dr Eagle reported that Mr Ibrahim told her he had met Mr Mallah in custody, and that he “denied any sympathy for extremist views purported to be held by Mr Mallah”.

I do not consider that, as contended by Mr Ibrahim, these writings go no higher than reflecting “an innocent interest in a fellow Lebanese Muslim with a shared prison segregation experience”. There is substance in the submission of the State that, whilst the letter does not contain a specific threat, it does provide a context in which to understand Mr Ibrahim’s later writings.

Another difficulty with Mr Ibrahim’s submissions is that they fail to take into account aspects of the correspondence such as “these infidels will not win”, “Allah has promised us victory” and “may Allah be with you all the way my brother and make you victorious over these disbelievers”.

In a further CSNSW Intelligence Report (number 1291.09), it was recorded that on or about 14 August 2009, while in custody, Mr Ibrahim wrote a letter to his mother, Najwaa Ibrahim. In that correspondence Mr Ibrahim wrote:

On the same date, Mr Ibrahim made a telephone call to Karen Ibrahim (his ex-wife) in which he made various threats, including: “I’m gonna rip your throat when I get out you rat … you’re not a Muslim and you’re not dying a Muslim”.

Mr Ibrahim submitted that, although at the time the threats were made there were references to Islamic religious terminology, the threats ought be viewed in the context of Mr Ibrahim having a strictly personal agenda at a time when he was both mentally unwell and extremely upset about the divorce in his absence, the context including that he felt "persecuted by everyone” and, at that time, was “feeling upset about his divorce and having no contact with his children”. That submission was supported with reference to the Dayalan Report (see para 34).

Although Mr Ibrahim at that time used religious language and appropriated the language of Islam and made reference to “sworn enemies”, it was submitted that the letters relate to personal conflict and any violence in language must be considered in the context of a difficult personal and interpersonal conflict involving Mr Ibrahim’s ex-wife. The use of the term “Kufar” means unbelief, “to be thankless”, “to be faithless”, or “ingratitude”. It is not evidence of violence in furtherance of a terrorist or extremist violence agenda, it is rather violence infused with “thought disordered” and “deluded religious rantings”.

It was further submitted by Mr Ibrahim that, at the time of making the threat, Mr Ibrahim was in custody and no doubt extremely frustrated, including a period in segregation, where there was no opportunity for him to carry out the threats and where the evidence did not support in any way and that at any time, he had any real intention to engage in actual physical violence towards his family.

However, I agree with the submission of the State that Mr Ibrahim’s submissions fail to engage with the language actually used by him in the correspondence. The language is not entirely or strictly personal but it is apparent that there is a use of “universalising” and “totalising” language of a religious ideology, with Mr Ibrahim’s perceived persecutors “othered” as “enemies of Islam” or “not Muslim”.

In Dr Shanahan’s First Report, he expressed the view that “[t]he mixing of references to Karen [Ibrahim] being an enemy of Islam and threatening to kill her supports the view that the violence he is threatening her with is based in whole or in part on an extreme religious view regarding the permissibility of killing of people he perceives to be enemies of his faith”.

Both the letter and the telephone call were written and made in a period of apparent instability in Mr Ibrahim’s mental health condition. Mr Ibrahim had entered custody in late 2008 in poor mental health, largely as a result of drug use and non-compliance with anti-psychotic medication, and this continued until at least mid-2009 when he re-commenced anti-psychotic medication (around the time that the communications occurred). Mr Ibrahim’s mental health further deteriorated from October 2009, when he was “extracted from his cell and placed in segregation”. Correctional Officers noted that “[w]hen in this state, [Mr Ibrahim] believes he answers only to Allah, and also that he is some form of prophet”. However, the threats made by Mr Ibrahim were plainly comprehensible and do not appear to be the product of delusions; a consideration which is supported by Mr Ibrahim’s submissions that they were personally vengeful.

Whilst it is clear that Mr Ibrahim was mentally unstable at the time of the writing of this letter and there was, in a sense, a personal agenda in that Mr Ibrahim was directing his invectives towards his ex-wife and father (who was assisting her in getting a divorce), there is no proper basis in my view to, on the evidence before the Court, to doubt the opinion expressed by Dr Shanahan as to the relevant connection between a statement, an advocacy for violent extremism or, alternatively, that threats of violence were made of the kind referred to in s 10(1A)(a)(iii).

On or about 30 September 2009, while in custody, Mr Ibrahim wrote another letter to Najwaa Ibrahim. In the letter, he stated: “yous are off your fucken heads violent deaths no-ones getting away” followed by a list of people including Kevin Rudd, Julia Gillard, Ron Woodham (the Commissioner for Corrective Services at that time), parole officers, police, judges, and also Karen Ibrahim.

Dr Shanahan stated that Mr Ibrahim also made reference to a chapter of the Qur’an entitled “Surate al fill” (“the Elephant”), a verse which “tells of the violent deaths of those who tried to invade Mecca”.

In Dr Shanahan’s First Report, he expressed the view that “[b]y linking a religious text that tells of violent deaths with the names of senior Australian political figures and corrections/police members, he appeared to be advocating the violent deaths of individuals based on an extremist interpretation of Islamic sources”.

The letter was written in the same period of apparent instability in Mr Ibrahim’s mental health condition.

On or about 25 February 2012, while in custody, Mr Ibrahim wrote a letter to another inmate, Mouna El-Ahmad. The letter contained threats against the Australian Government, including the following:

In Dr Shanahan’s First Report, he explained that the reference to “Ah Dukhan” (Arabic: “the smoke”) in Mr Ibrahim’s statement (as noted in sub-para (2)(c) above) is a reference to a verse from Ch 16 of the Qur’an, “Al-Dukhan”, in which it is written that “smoke will come down on the earth and painfully envelope the unbelievers”. In respect of the statements above, Dr Shanahan expressed the view that “[t]he combination of references to retribution against unbelievers, talk about assaulting the Australian Government and bombs going off in Australia … constitutes a statement in support of violent extremism because of the link between violence and an expressed religious view”.

The letter was written at a time when Mr Ibrahim appeared to have been experiencing persecutory delusions. In particular, on 24 February 2012, Mr Ibrahim participated in an interview with a parole officer in which he “revealed some paranoid thinking around his sentence, corruption [and] government involvement”, at one point becoming “agitated and loud” and hitting the table with force.

As earlier mentioned, on or about 22 September 2014, Mr Ibrahim wrote a letter to Ali Ibrahim whilst in custody. I have earlier referred to this correspondence in a context of considering the operation of s 10(1A)(a)(iii).

In the letter, Mr Ibrahim used the term “hypocrites” in the context of threats of violence. Mr Ibrahim also wrote that he believed that corrective officers had tried to kill him, and that the Australian Government is going to harm him, including by falsely imprisoning him and then killing him, probably because of his religion. The letter then continued with threats against Australia, the Australian Government and various government officials.

Dr Shanahan provided the following opinion in relation to this letter:

During cross-examination, Dr Jones agreed with significant aspects of Dr Shanahan’s evidence, namely, that:

In Dr Shanahan’s First Report, he observed that, in addition to the repeated references to “hypocrites”, Mr Ibrahim also included the following statement: “Anabiya vs Australia. Anabiya won by way of terror. With horror”. Dr Shanahan explained that “Anabiya” referred to the “gate or door to Paradise” and expressed the view that Mr Ibrahim “appear[ed] to be linking the notion of entering Paradise as being antithetical to his enemies and to Australia”.

The letter was written during a period of apparent stability in Mr Ibrahim’s mental health condition.

On 23 February 2016, Mr Ibrahim was interviewed by police in relation to the index offence.

During the course of the interview, Mr Ibrahim made a number of statements to police that, according to Dr Shanahan, constituted examples of Mr Ibrahim advocating violence using Islamic terminology. For example, Mr Ibrahim told police, inter alia:

Further, at the time of his arrest, Mr Ibrahim “made continual remarks about a coming “day of horrors” and that the police, judiciary and Corrective Services will be the ones to be “massacred on this day”. He also told police that he was a “terrorist” and asked police to “get me a terrorist lawyer”.

In the period immediately prior to the index offence, Mr Ibrahim told his treating psychiatrist, Dr Phillip Empson, that he was “getting out of control” (although he refused to engage with drug rehabilitation treatment) and Dr Empson reported to Mr Ibrahim’s GP that he was “not well”. It is clear that Mr Ibrahim was suffering a period of mental health instability at that time.

At some point between 1 June 2017, when Mr Ibrahim was placed in a cell at the John Morony Correctional Centre, and mid-August 2017, he covered the walls of his cell in writing which were later discovered by a Correctional Officer during a cell inspection (Mr Ibrahim was the only occupant of the cell at the relevant time and he conceded that he made them). The writings were photographed after discovery and thereafter were the subject of a CSNSW Intelligence Report.

In the Elliot Report, as to the cell wall writings (and various hand written letters of Mr Ibrahim), Dr Elliott opined:

Dr Elliott's overall impression of Mr Ibrahim’s various writings, including the cell wall writings, was that "they are put prominently thought disordered, suggesting they are the product of Mr Ibrahim's mental illness, rather than an organised terrorist manifesto".

In relation to previous threats made by Mr Ibrahim (his letter writing and cell wall writings) Dr Eagle opined these were all “consistent with the disorganised thought processes often observed in those with schizophrenia and contain numerous references to psychotic symptoms such as bizarre persecutory delusions and referential beliefs (misinterpreting otherwise benign events or circumstances as having personal significant)”.

Dr Dayalan observed that at the time of making the written and oral statements, whilst in the correctional environment, “his capacity to carry out the threats would have been quite restricted due to his placement within a correctional environment” whereas, whilst in the community, Mr Ibrahim is supported by his family members noting, “his family members would have assisted with Mr Ibrahim receiving treatment in an inpatient psychiatric facility in the context of acute relapse”.

Dr Klamer reported in relation to what she described as the “range of religious verses on his cell wall”, as including references to “extra-terrestrial intelligence, War of the Worlds, little green men, and grey aliens” suggestive of “delusional content” related to a “possible deterioration in Mr Ibrahim's mental health”.

The cell wall writings contained statements such as:

In Dr Shanahan’s First Report, he expressed the view that the cell wall writings link “religious references with acts of violence” and so constitute statements “in support of violent extremism”.

Further, the period between June and August 2017 was a period of apparent stability in Mr Ibrahim’s mental health condition. The relevant OIMS case notes and Justice Health progress/clinical notes did not indicate that Mr Ibrahim was experiencing mental ill-health at the time. On 6 August 2017, Mr Ibrahim was assessed by a consultant psychiatrist and was not found to be exhibiting psychotic symptoms. Further, his mental health presentation in October 2017 was noted to be stable.

On or about 2 October 2017, while in custody, Mr Ibrahim wrote a number of letters to an inmate, Ms Alicia Kent. In the letters, Mr Ibrahim alleged that Ms Kent had set him up and falsely accused him of rape. He also made a number of threatening or derogatory remarks, including:

In Dr Shanahan’s First Report, Dr Shanahan expressed the view that Mr Ibrahim’s statements in the letters constituted threats of violence in which Mr Ibrahim’s enemies were defined “through the use of religious terminology” and with “religious identities” being used “as [a] justification for being an enemy and justifying violence”.

The letters were written during a period of apparent stability in Mr Ibrahim’s mental health condition. On 6 October 2017, at or around the time that the letters were written, Mr Ibrahim was reviewed by a Justice Health psychiatrist who noted that Mr Ibrahim displayed “good engagement”, “nil mood disturbance”, “nil psychotic symptoms” and “good insight”.

In my view, and having regard to my earlier discussion of the various contentions by Mr Ibrahim as to Dr Shanahan’s opinion, these statements provide a proper basis to conclude that Mr Ibrahim has advocated support for terrorist acts and, more particularly, advocated for violent extremism (and, in that respect, as that concept has already previously been discussed in this judgment).

Before turning to my conclusion as to the first predominant issue, I turn to the Mr Ibrahim’s reliance upon the judgment of State of New South Wales v Haider [2020] NSWSC 38 (“Haider”) (per Davies J). Mr Ibrahim suggested that Haider supports the proposition that a strong consideration against the Court making an ESO or finding that s 20(c) of the THRO Act is satisfied if s 10(1A)(a)(i) of the THRO Act is not made out. In that respect, reliance was placed upon the following passages of Haider at [30], [33]-[35], [39]-[41] and [43].

Having reviewed the decision of Davies J, in my view, the statement of principle Mr Ibrahim sought to derive from Haider is simply not available on any reading of the decision. Further, the pinpoint references Mr Ibrahim provided to sections of Haider did not support Mr Ibrahim’s submission in this respect.

In any event, the judgment in Haider is distinguishable from the present matter as it turns on a different factual basis. In Haider, the State relied upon s 10(1A)(a)(ii), regarding the display of images and an ideology, and not s 10(1A)(a)(i). The evidence was that those images and symbols were that of “AMAL” and “Hezbollah”. In Haider, the State failed to establish s 10(1A)(a)(ii) as the Court did not accept that the evidence showed that AMAL or Hezbollah were organisations that supported terrorist acts or violent extremism: at [58]-[60].

On the basis of the statements made by Mr Ibrahim, as analysed in the above reasons, and, in particular, having regard to the opinions expressed by Dr Shanahan and the concessions made by Dr Jones, in that respect, I consider that the evidence demonstrates that Mr Ibrahim is a “convicted NSW terrorism activity offender” either by virtue of the provisions of s 10(1A)(a)(iii) or by virtue of s 10(1)(c)(i) or both.

The Court is only able to make an ESO if satisfied to a high degree of probability that Mr Ibrahim poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under such an order: s 20(d) of the THRO Act.

The task conferred on the Court by s 20(d) of the THRO Act is left largely unaffected by other provisions of the THRO Act, save that s 21 makes clear that the Court “is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence”.

The elements of s 20(d) of the THRO Act were considered by the Court of Appeal in Naaman No 2. There, the Court of Appeal summarised the key aspects of the provision as follows (at [29]):

The test in s 20(d) is whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. The requirement of being satisfied to a “high degree of probability” imports a standard of proof that is higher than the civil standard but lower than the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the standard is a high one, it is important to recognise that the Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit an offence of the relevant kind (here, a serious terrorism offence), but, rather, that he or she poses an “unacceptable risk” of doing so: see example, The State of New South Wales v Sharpe [2017] NSWSC 469 at [51]; State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21], both decisions concern “unacceptable risk” in the context of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”).

Whether a particular risk is “unacceptable” is an evaluative determination which falls to be made in the applicable statutory context in which the question arises: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [51]-[61], [116], [132]. In this respect, the Court must have regard to the primary protective purpose of the Act, namely – and as with the purpose of the CHRO Act – to “ensure the safety and protection of the community”: Lynn at [55]. The phrase “unacceptable risk” is not defined in the THRO Act and should be given its everyday meaning within its context and having regard to the objects of the THRO Act: Dunn at [24], referring to Lynn at [58].

Reference may also be made to the judgment in Ceissman where the Court discussed the evaluative assessment required under s 20(d) of the THRO Act as follows (at [26]-[33]):

“Serious terrorism offences” are defined to be offences against Pt 5.3 of the Criminal Code, for which the maximum penalty is 7 years or more of imprisonment (s 4(1)). Those offences include:

In Naaman No 2, the Court of Appeal referred to the fact that the State had not particularised the serious terrorism offence upon which it relied, but did not suggest that there was any requirement of particularisation: at [39]. In State of New South Wales v Alam [2020] NSWSC 295 (“Alam”) at [129], Wilson J held that it is not necessary for the Court to specify the serious terrorism offence as part of the Court’s risk assessment function under the THRO Act. In Cheema No 1 at [189], Johnson J agreed with that statement and further observed:

The answer to the questions raised by s 20(d) may be assisted by reference to some of the mandatory considerations for the making of an ESO set out in s 25(3) of the THRO Act (see State of New South Wales v Elmir (Final) [2019] NSWSC 1867 at [59]; see also, in the context of the CHRO Act, State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [42] (“Kamm (Final)”), referring with approval to Beech-Jones J in State of New South Wales v Fisk [2013] NSWSC 364 at [22])..

There were significant aspects of the State’s submission summarising features of the material with respect to these considerations, which were uncontroversial and the evidence uncontested. Where not the subject of controversy, they have significantly informed the discussion of the mandatory factors which follow.

Mr Ibrahim has a complicated mental health presentation; of most significance, in that respect, is his diagnosis of schizophrenia (which he has had since the age of 21 years).

This diagnosis has been reached by multiple clinicians over an extended period of time, including (but not limited to):

Mr Ibrahim’s schizophrenia is properly characterised as a chronic condition with a remitting and relapsing course. His relapses into psychosis have occurred frequently over the course of his adult life, resulting in “nearly” 15 inpatient admissions to mental health facilities such as Banks House at Bankstown Hospital and Cumberland Hospital. He has also been subject to CTOs and Forensic Treatment Orders (“FTO”) on at least 7 occasions, including in 1997, 1998, 2006, 2012, 2018, 2019 and 2020. The recent Forensic Community Treatment Order (“FCTO”) (which became a CTO upon Mr Ibrahim’s release from custody) was imposed on 23 October 2020 and will expire on 22 October 2021 (although it was scheduled to be reviewed by the Mental Health Review Tribunal on 22 April 2021).

He has a well-documented history of chronic psychotic illness characterised by delusions, hallucinations, disorganisation in thought form and bizarre behaviour with multiple admissions to psychiatric inpatient units at Bankstown and Cumberland Hospital in the context of acute psychotic episodes. His symptoms have persisted, even during periods of abstinence from illicit substances, and have contributed to impairment of his psychosocial functioning.

As will be discussed further below, a significant feature of Mr Ibrahim’s schizophrenic relapses is his use of drugs (his substance use disorder is discussed below) and his non-compliance with medical treatment. I will return to the risk of relapse of Mr Ibrahim’s mental health condition below.

Mr Ibrahim’s schizophrenia has been characterised by a persistent persecutory belief system involving a conspiracy by the Australian Government (or “the government” generally) to harm him, including by falsely imprisoning him and then killing him, probably because of his religion.

I accept the submission of the State that the belief system appears to have arisen at some point during Mr Ibrahim’s period in custody between October 2008 and July 2009.

In July 2010, while in custody, Mr Ibrahim was charged with:

Shortly after his release from this period of custody, Mr Ibrahim told his parole officer the following (which was recorded in OIMS case notes):

In the ensuing period, Mr Ibrahim had expressed similar persecutory beliefs to a range of other clinicians and persons involved in his custody or supervision. For instance, and without being exhaustive, in December 2018, he told Dr Elliott that “the government made a concerted effort to kill him in his cell by gassing him, electrocuting him and pouring acid on him” and that he was “being targeted specifically because of his Islamic faith”. Likewise, in December 2018, he told Dr Eagle that “they set me up”, “they gassed the room” and it was “because he was Muslim they wanted ‘to get rid of me’”.

Dr Klamer also noted that Mr Ibrahim used persecutory delusional beliefs to justify the use of violence against prison officers he viewed as having been involved in wrongly incarcerating him in 2014.

In March 2021, Mr Ibrahim told Dr Dayalan that the Australian Government “tried to poison me … They kept giving me more and more food when nothing was happening to me … They put [a] detonator in the speaker in my cell … gas in detonator and acid in shower”. He also said that this persecution was “probably because of my religion”, and when challenged about these beliefs, “was adamant that the government had tried to kill him whilst he had been in gaol”. Dr Dayalan observed that Mr Ibrahim’s “delusional beliefs have been refractory to treatment” and that “he continued to present with delusions at the time of assessment”. At that time he had been receiving depot anti-psychotic medication since October 2019 and indeed received a depot injection in the weeks leading up to his assessment by Dr Dayalan. Dr Klamer also noted that Mr Ibrahim continued to possess some ongoing persecutory beliefs whilst overall presenting as stable in his mental health.

A matter of some significance is Mr Ibrahim’s denial of holding persecutory beliefs (to Dr Eagle in October 2019 and Dr Elliot in November 2019) and his apparent attempts to provide answers in psychological or psychiatric assessments in anticipation of reporting which may have an adverse implication for him.

The State provided a useful summary of evidence bearing upon that question in the State’s Index Submissions, which, relevantly, included the following:

As has already been mentioned, Mr Ibrahim’s long-standing use of drugs is associated with relapses in his schizophrenia and, as will be discussed below, an increase in his risk of violent offending.

Mr Ibrahim has been diagnosed with substance use disorder by multiple clinicians over an extended period of time, including (but not limited to):

Mr Ibrahim’s diagnosis of antisocial personality disorder has been the subject of disagreement. Dr Eagle expressed the view that Mr Ibrahim meets the diagnostic criteria for antisocial personality disorder in November 2020, November 2019 and January 2019. A similar view was expressed by Dr Elliott in November 2019 and January 2019.

By contrast, other clinicians have simply observed that Mr Ibrahim has significant “antisocial personality traits”, without making a diagnosis of antisocial personality disorder. For instance, in March 2021, Dr Dayalan opined that while Mr Ibrahim displays “[f]eatures of antisocial personality disorder such as repeated offending behaviour, poor impulse control, tendency for irritability and aggression, consistent irresponsibility and limited remorse for actions”, a diagnosis of antisocial personality could not be “definitively made” in the absence of “conclusive evidence to support the presence of conduct disorder in childhood”.

Counsel for Mr Ibrahim submitted that that “all experts” agreed that Mr Ibrahim in his current state did not pose a risk of violent offending and that such a risk would only arise with the deterioration of his mental health. It was further submitted:

Those submissions were instrumental in the contention by Mr Ibrahim that the Court could not be satisfied that he posed an unacceptable risk of committing a serious terrorism offence if not kept under an ESO.

I do not consider that these submissions properly reflect the opinions provided in the expert opinion of the court appointed experts and Dr Eagle. Further, I consider their reports are, in fact, consistent with an affirmative conclusion under s 20(d).

Those conclusions require a close consideration of the expert reports of those psychiatrists including (separately) their assessment of the risk of relapse of mental health conditions and relapse into schizophrenia due to drug use or non-compliance with medical treatment.

Mr Ibrahim principally relied upon the components of the Dayalan Report dealing with the following:

I propose to extract those passages together with some broader context as to Dr Dayalan opinions.

At para 164, Dr Dayalan opined:

At para 166, Dr Dayalan reported as follows:

As to the risk formulation, the entirety of Dr Dayalan’s opinion is extracted (at paras 171-173):

As to the question 4, which concerned the likelihood of Mr Ibrahim committing a serious terrorism offence, it is again useful to extract the whole of the relevant passages of his opinion and, in that respect, noting that the full context of his opinion is given by reference to not only para 185 but also paras 188 and 192. That extract is as follows:

Finally, at paras 196-197, Dr Dayalan opined:

I note that Dr Dayalan identified some protective and risk mitigating indicators, including support from family and services in the community. I will return to those topics later in this judgment but will extract some relevant passages here (see a paras 180-183):

Returning to the questions 4 and 5b, I agree with the submission of the State that Dr Dayalan’s ultimate conclusion on the issue of risk was that “[i]n his current mental state, Mr Ibrahim does not pose an elevated risk of engaging in behaviour that would constitute a serious terrorism offence” (para 185), but “[h]is risk of engaging in such behaviour will increase in the context of relapse of acute psychosis” (para 188). Further, the risk of Mr Ibrahim engaging in violence that is motivated by religious or ideological cause “would be significant in the context of relapse of acute psychosis in the community”, particularly in circumstances where Mr Ibrahim was, inter alia, “receiving minimal supervision and support” and “using illicit drugs and alcohol”. Thus, the answers provided at paras 185 and 188 concern, respectively, a question as to the likelihood of Mr Ibrahim committing a serious terrorism offence, whereas the statements at paras 196 and 197 of the Dayalan Report concerns the matters that may bear upon or contribute to that risk.

Mr Ibrahim criticised the report of Dr Klamer as giving “undue weight” to Dr Shanahan’s opinion that Mr Ibrahim presents with an understanding of Islam, “greater than the average person”. However, I do not consider that is a fair criticism of the Klamer Report; which finding must also be considered in the light of my earlier rejection of Mr Ibrahim’s criticisms of the Dr Shanahan’s First Report.

Dr Klamer’s overall opinion is reflected at para 93 of her report, which is extracted below:

Mr Ibrahim referred to Dr Eagle’s opinion that “on the basis of his current presentation, Mr Ibrahim is unlikely to be at increased risk of engaging in a violent act that is justified on the basis of an extreme religious or ideological belief”. Mr Ibrahim also accepted that, in the context of a relapse of his mental illness, Dr Eagle was of the view that Mr Ibrahim’s risk of engaging in violence that is justified or motivated by extreme ideological beliefs was significantly increased. Notwithstanding that acceptance, Mr Ibrahim then provided a summary of various aspects of Dr Eagle’s opinion, supportive of Mr Ibrahim’s current presentation, as follows:

It was then submitted by Mr Ibrahim that Dr Eagle had assessed that the majority of risk indicators across the four categories which were reviewed were ranked in the “low category” although some were ranked “low /moderate” and a small number of indicators were ranked in the “moderate” range. Reference was made to the overall risk using the Violence Extremism Risk Assessment - Version 2 revised (“VERA 2R”) (provided at para 191 of the Eagle Report).

Reference was also made to Dr Eagle’s opinion as to Mr Ibrahim’s susceptibility to relapse in the community and, in particular, Dr Eagle assessed the Mr Ibrahim as being in the “low/moderate” category of susceptibility to influence, control or indoctrination, observing if experiencing mental illness, the defendant “would be susceptible to propaganda and indoctrination from violent extremists groups”. Reference was also made to Dr Eagle’s opinion that Mr Ibrahim was ranked as a low risk of seeking, using or developing violent extremist materials and reports.

Mr Ibrahim then submitted that Dr Eagle opined that there was no clear information to suggest that Mr Ibrahim’s conduct was motivated by religious obligation or purification and attributed his previous violent behaviour as being motivated by “criminal opportunism”. Dr Eagle further observed that whilst Mr Ibrahim has associated with “antisocial and pro – criminal peer groups”, this does not appear to be a prominent feature of Mr Ibrahim’s offending.

It is true that Dr Eagle made various assessments under various categories in her application of the VERA 2R. However, attention also needs to be directed to Dr Eagle’s overall assessment of the risk posed by Mr Ibrahim, which was that he posed a moderate risk of engaging in an act of violent extremism in the community without adequate monitoring and support given his risk of relapse into mental illness.

Dr Eagle’s ultimate conclusion on the issue of risk, similar to Dr Dayalan, was that “on the basis of his current presentation, Mr Ibrahim is unlikely to be at an increased risk of engaging in a violent act that is justified on the basis of an extreme religious or ideological belief”, but that “in the context of a relapse of his mental illness, … [his] risk of engaging in violence that is justified or motivated by extreme ideological beliefs is significantly increased”. Dr Eagle characterised the overall level of risk posed by Mr Ibrahim of “engaging in act of violent extremism in the community” as “moderate”, “given [his] risk of relapse of his mental illness”.

Dr Eagle also noted that this overall “moderate” risk is “likely to increase in the context of limited access to appropriate support and risk management strategies in the community and it would likely reduce with effective risk management, appropriate levels of support and assertive mental health treatment”.

In Dr Eagle’s view, the increase in risk flows from the fact that Mr Ibrahim’s “ideological beliefs appear to intensify during acute relapses of his mental illness and incorporate bizarre persecutory delusions directed at various parties, including the Australian [G]overnment”. The opinion of Dr Eagle was that “in the context of a relapse of his mental illness, Mr Ibrahim is at risk of engaging in violent acts that are motivated by a psychotic grievance and inspired or influenced by his religious or ideological beliefs”.

When Mr Ibrahim is “acutely psychotic”, he displayed, in Dr Eagle’s opinion, “a number of risk factors that have been associated with acts of violence linked to extreme ideological beliefs”, including:

In terms of the precise nature of the conduct that Mr Ibrahim is at risk of engaging in, and its likely victims, Dr Eagle expressed the following view (similar to that of Dr Dayalan):

In my view, the Dayalan Report, the Klamer Report and the Eagle Report each make an assessment that Mr Ibrahim’s risk of engaging in conduct that may constitute a serious terrorism offence is associated with the risk of him experiencing a relapse of his mental condition. Based upon those reports, there is no foundation for the contention advanced by Mr Ibrahim that it is not possible to even remotely envisage a single or combination of circumstances, even in the context of Mr Ibrahim becoming mentally unwell, that he poses an unacceptable risk of committing a terrorist act.

Each of the experts has, in fact, “envisaged” circumstances in which Mr Ibrahim was at risk of committing a serious terrorism offence; the relevant circumstances being, in essence, that he might suffer a deterioration in his mental health as a result of drug abuse and/or non-compliance with his medication regime and, in that context, engage in an act of violence that is justified by extreme religious or ideological beliefs. The likelihood of this risk coming to fruition has been characterised as “significant” by Dr Dayalan and “moderate” by Drs Klamer and Eagle, bearing in mind, as I will discuss further below, the high risk of Mr Ibrahim experiencing a relapse of his mental health condition if left unsupervised in the community.

A “significant” or “moderate” risk of an act of violence of the sort described above is properly considered to be “unacceptable” for the purpose of s 20(d) of the THRO Act, noting that, even a slim possibility of an offender committing an act with serious consequences for other persons and the community may be “unacceptable”: see Naaman No 2 at [29(5)]. The experts foreshadowed such serious circumstances if the risk of acts of violence were to materialise in Mr Ibrahim’s case.

This conclusion necessarily draws attention to the risk of relapse of Mr Ibrahim’s mental condition and the related questions of the risk of relapse due to drug use or non-compliance with medical treatment. However, before turning to such considerations, it is appropriate to first turn to two related considerations, namely, Mr Ibrahim’s susceptibility to influence and Mr Ibrahim’s insight into his mental health conditions.

As to the first of those considerations, the following expert opinions were expressed:

As to Mr Ibrahim’s insight into his underlying mental illness, the following expert opinions are relevant:

As mentioned, each of Dr Dayalan, Dr Klamer and Dr Eagle expressed the view that Mr Ibrahim presents a high risk of experiencing a relapse in his mental health condition in the absence of supervision.

Dr Eagle opined that Mr Ibrahim is at “high risk of relapse”, “due to his lack of insight, substance use disorder, and repeated history of non-compliance with treatment”.

Similarly, the court appointed experts drew attention to Mr Ibrahim’s drug use and lack of compliance with medical treatment as factors relevant to his risk of relapse, and thus, his risk of committing conduct capable of constituting a serious terrorism offence. Dr Klamer emphasised the repeated and “continual nature” of Mr Ibrahim’s drug-use over a long period. Dr Dayalan observed that Mr Ibrahim’s “[u]se of illicit drugs such as crystal methamphetamine and cannabis will exacerbate his psychotic symptoms and will, therefore, have a bearing on the risk of engaging in violent behaviour justified by his religious/ideological beliefs”.

In respect of non-compliance with medical treatment, Dr Dayalan expressed the view that “Mr Ibrahim poses a high risk of non-compliance with treatment especially his depot medication unless there are adequate external measures to ensure compliance” and that “[n]on-compliance with treatment is associated with a high risk of deterioration in his psychotic symptoms and therefore will indirectly increase his risk of engaging in an act of violent extremism”.

The State also advanced a submission as to other factors suggesting that Mr Ibrahim is at higher risk of drug use in the absence of supervision, which I accept. Those factors were identified as follows:

The significance of these factors, when combined with the expert opinion before the Court, is that they represent the potential trigger of a relapse of Mr Ibrahim’s mental condition and the associated risks relevant to the considerations under s 20(d). A similar conclusion may be reached with respect to the risk of relapse occasioned by non-compliance with medical treatment. Again, the State has pointed to a number of relevant factors in this respect which, in my view, permit a conclusion that Mr Ibrahim is at a high risk of non-compliance with medical treatment. There are three such factors.

First, Mr Ibrahim has a long history of non-compliance with medical treatment, including, in particular, use of oral anti-psychotic medication (as opposed to depot anti-psychotic medication). This history includes the following:

Secondly, Mr Ibrahim’s attitude to receiving medical treatment for his mental health condition remains equivocal, especially insofar as his depot anti-psychotic medication is concerned. Whilst he has been receiving depot anti-psychotic medication since October 2019, there is evidence to suggest that his agreement to this treatment was strategic and that he would not continue to agree to the treatment in the absence of compulsion. In particular, I note the following examples supportive of that conclusion:

I accept the State’s submission that the frequency and repetition of Mr Ibrahim’s attempts to have his depot antipsychotic medication reviewed is suggestive that Mr Ibrahim would not continue to accept depot antipsychotic medication without “external mandating”.

Third, each of the court appointed experts and Dr Eagle had reported that Mr Ibrahim displays poor insight into the nature of his mental health condition and the need for it to be medically managed. This lack of insight has been evident in recent times. For instance, on 12 January 2021, during a review by a Justice Health clinician, Mr Ibrahim stated that “he thinks he gets drug induced psychotic symptoms only”. This suggests that Mr Ibrahim has a poor understanding of the nature of his schizophrenia, particularly its chronicity and likely lifelong duration. In the context of a further review by a Justice Health clinician on 18 February 2021, the clinician observed that Mr Ibrahim’s “insight is limited” and that he “accepts medication due to FCTO and Community Corrections insisting”.

Mr Ibrahim has a long criminal history involving violence or threats of violence. The acts of violence or threats of violence were often carried out with a firearm or other weapon.

In January 1999, Mr Ibrahim was charged with two counts of robbery while armed with a dangerous weapon. The charges related to two separate incidents, in quick succession, in which Mr Ibrahim robbed pharmacies at gun point, with a single barrel rifle. In addition to pointing the rifle at staff members, Mr Ibrahim also pointed it at members of the public who attempted to intervene. The District Court sentenced Mr Ibrahim to 5 years’ imprisonment, with a non-parole period of 2 years. In passing sentence, Tupman DCJ remarked that, while there was evidence that Mr Ibrahim had a psychiatric illness, “[t]here is no evidence that the fact of [his] psychiatric illness was necessarily connected with his commission of the offences on this occasion” and that “[t]he appropriate sentence imposed must send a clear message to the community that the courts will not stand for people like this prisoner, whether they be addicted to drugs, whether they have a psychiatric illness or not, interfering with ordinary law-abiding members of the community … and who are put in fear and confronted by people like this prisoner in the way he did”.

In April 2002, Mr Ibrahim was charged with multiples offences:

As previously mentioned, the armed robbery charges related to three separate incidents in which Mr Ibrahim robbed a hotel, a post office and a bottle shop at gun point, with a pistol or handgun. In addition to pointing the handgun at various staff members, Mr Ibrahim also pointed it at least one member of the public. The District Court sentenced Mr Ibrahim to 8 years 6 months’ imprisonment, with a non-parole period of 3 years 6 months.

In passing sentence, Charteris DCJ remarked that, although Mr Ibrahim’s “judgment was affected by his mental illness”, there was a “considerable amount of planning involved in the offences”, “the execution was cold and clinical” and he “had the capacity to engage in a calculated and planned exercise and successfully achieved his aim of carrying out three robberies in the space of some seventeen hours”.

His Honour also emphasised the “disturbing feature that [Mr Ibrahim] had access to a gun”, the “troubling” lack of evidence “as to where he acquired the gun or what he did with it after the commission of the offences” and the fact that the victims suffered “enormous fear and terror” while “innocently going about their occupations”.

In November 2008, January 2009 and August 2009, Mr Ibrahim was charged with two separate offences of robbery armed with offensive weapon and further offences of use offensive weapon with intent to commit an indictable offence and assault occasioning actual bodily harm. The armed robbery charges related to two separate incidents in which Mr Ibrahim robbed members of public on the street at knife point. The offensive weapon and assault charges related to an incident in which Mr Ibrahim forced his way into a person’s home at gun point, with a rifle. The District Court sentenced Mr Ibrahim to 3 years 9 months’ imprisonment, with a non-parole period of 2 years.

I have earlier discussed the 2009 assault offences whilst Mr Ibrahim was in custody, under the heading “ Mental Health Conditions”. As mentioned, the charges were brought in July 2010.

In August 2013, Mr Ibrahim was charged with robbery armed with an offensive weapon. The charge related to an incident in which Mr Ibrahim robbed a person on the street at knife point. The District Court sentenced Mr Ibrahim to 3 years’ imprisonment, with a non-parole period of 20 months.

The index offence occurred on 23 February 2016, whilst Mr Ibrahim was on parole for the earlier offence of robbery. That charge related to an incident in which Mr Ibrahim stole 176 items of jewellery (worth $80,402.29) from a jewellery store in Bankstown. He threatened staff during the robbery, purporting to have a gun and demanding staff members’ drivers licences so they could be “killed” if they reported the incident to police. The District Court sentenced Mr Ibrahim to 5 years’ imprisonment, with a non-parole period of 2 years 9 months).

In passing sentence, Scotting DCJ remarked that, although the offence “involved very little actual violence”, it “involved a significant threat of violence in the allegation that [Mr Ibrahim] had a gun and would take steps against the employees of the store”. His Honour also remarked that “[i]t seems to me that his history is indicative of the fact that it is his mental health and subsequent drug taking that need to be targeted in a way to prevent him from offending in the future”.

In addition to the above offences, Mr Ibrahim has committed six institutional offences involving violence or the threat of violence, including: fight or other combat (3 offences); intimidation (2 offences); and assault (1 offence).

In light of the preceding summary of Mr Ibrahim’s criminal history of violence or threats of violence, I make the following findings:

Mr Ibrahim has committed a large number of his offences while on parole. Specifically, the following offences or groups of offences were committed while on parole and resulted in the revocation of his parole:

Mr Ibrahim has also committed a number of offences while on bail. Notably, in early 1995, he committed a series of separate offences while on successive grants of bail. The offences included stealing, assault occasioning actual bodily harm and break and enter with intent to steal. In dismissing an appeal against sentence, in respect of those offences, the Court of Criminal Appeal remarked that “this is not a case of what might be described as a single, one-off, out-of-character offence”, but “a case that involves a studied succession of serious criminal offences committed successively while on successive grants of bail” and, further, that “[b]reach of bail is always regarded by the Courts as a serious matter because of the light it casts upon the reliability of the person who has been granted, and who has abused, the privilege of bail”: R v Ibrahim (Court of Criminal Appeal (NSW), Sully J and Bell AJ, 4 September 1996, unrep).

This part of the consideration points to the need for a supervision management strategy that involves clear and immediate consequences for non-compliance and appropriate supports. As put by Dr Dayalan, “[u]nless there are immediate consequences to any non-compliance with treatment or substance misuse, there is a high likelihood of Mr Ibrahim not complying with the treatment conditions [namely, the conditions imposed under the ESO]”. Similar observations were made by Dr Eagle, who noted that, in light of Mr Ibrahim’s “insight, previous non-compliance and antisocial personality traits … it would appear unlikely that [he] would be able or willing to engage in many of the above strategies without a clear external mandate with consequences”.

Overall, Mr Ibrahim has performed poorly as to compliance with his obligations on parole and when on conditional liberty.

Mr Ibrahim has a relatively poor history of engagement with treatment and rehabilitation programs and there is evidence to suggest that some of his recent engagement has been primarily strategic. In its submission the State distinguished between the following types of treatment and rehabilitation programs:

As to the first class, Mr Ibrahim has refused to participate in the Proactive Integrated Support Model (“PRISM”) program on two occasions, in October 2019 and October 2020, apparently on the basis that he is “not a radical”. On the second occasion, he indicated that he would be prepared to see a Countering Violent Extremism (“CVE”) psychologist instead. However, when asked about this by Dr Klamer, Mr Ibrahim reported that he had seen the CVE psychologist only once and that “he would decline further contact with her if she was going to focus on the same topics as would have been addressed in the PRISM program”.

As to programs targeting violence and aggression, Mr Ibrahim has refused to participate in the Violent Offenders Therapeutic Program (“VOTP”) on four separate occasions, namely, in December 2011, September 2018, July 2019 (on the basis that it might delay his release on parole) and August 2020.

After initially refusing to participate in the EQUIPS Aggression program in 2015, Mr Ibrahim completed the program in early 2020 and his participation was said to be “positive at all times”. There is some force in the State submission that some caution is warranted in evaluating Mr Ibrahim’s decision to complete the EQUIPS Aggression program, as it was made in a context in which it was apparent to him that completion of the program was likely to be significant to his prospects for obtaining parole (the relevant parole hearing occurred on 2 April 2020).

In light of Mr Ibrahim’s previous opposition to participating in programs targeting violence and aggression, in my view, there is a real possibility that his participation in the EQUIPS Aggression program was primarily strategic.

As to programs targeting drug use, and earlier mentioned, Mr Ibrahim has never completed a residential drug rehabilitation program. His engagement with outpatient drug rehabilitation programs, whether delivered in custody or in the community, has been poor. For instance, while he made some attempts to complete EQUIPS Addiction while on parole in mid-2015, the period was characterised by multiple positive drug tests, subsequent cessation of medical treatment, an inpatient admission at a mental health facility and a direction from his parole officer to re-engage with drug treatment (preferably via a residential drug rehabilitation program). Further, and contrary to a claim made by Mr Ibrahim during his assessment by Dr Klamer, there was no evidence that he completed EQUIPS Addiction whilst in custody. In April 2020, Mr Ibrahim “adamantly” refused to participate in EQUIPS Addiction on the basis that he had already completed EQUIPS Aggression even though the programs targeted different behaviour.

The court appointed experts and Dr Eagle agree that, when in good mental health, Mr Ibrahim does not have religious or ideological beliefs or commitments that support engaging or participating in terrorism activities or violent extremism. That position, however, is starkly different in circumstances where Mr Ibrahim is mentally unwell. It is in that context that Mr Ibrahim’s denial as to holding religious or ideological beliefs or commitments that support engaging or participating in terrorism activities or violent extremism is to be viewed.

Mr Ibrahim has a history of expressing religious or ideological beliefs that justify violence or retribution, especially against those perceived to be persecutors or enemies. As mentioned earlier and as discussed by Dr Dayalan, “[w]hen acutely unwell and in the context of feeling persecuted by the Australian Government, Mr Ibrahim [has] expressed [an] ideology that justified violence” with “religious references made when justifying the violence”. Again, as mentioned, Dr Eagle noted that while “Mr Ibrahim denied believing that violence is justified on religious grounds” when assessed, “given the apparent previous impact of Mr Ibrahim’s mental illness on his belief systems and behaviour, it would appear highly likely that he would return to previously held ideological ideas that justify violence in the context of a relapse of his severe illness”. Dr Eagle stated Mr Ibrahim’s “ideological beliefs appear to intensify during acute relapses of his mental illness”.

Mr Ibrahim’s denials as to the holding of such beliefs, in that light, holds considerably less significance.

Ms Kimberley Rambaud, a Community Corrections officer, has prepared a risk management report for the purposes of the State’s application for an ESO. The risk management report concludes, in effect, that Mr Ibrahim can reasonably and practicably be managed in the community, provided that he is subject to certain risk management interventions which are detailed in the report (it is unnecessary to repeat them here).

There were a number of factors raised by Mr Ibrahim which were said to constitute a reason why the Court would not be satisfied that Mr Ibrahim posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO. Those same factors, it may be noted, were also relied upon by Mr Ibrahim to constitute reasons why the Court should exercise its discretion not to make an ESO if the Court found that the preconditions for the making of an ESO were met. In summary, the factors raised by Mr Ibrahim, in that respect, were as follows:

Mr Ibrahim relied upon this factor in conjunction with the existence of a CTO. I shall approach the issue raised by s 20(d) in that light, but I shall consider each factor in turn.

As to the relevance of Mr Ibrahim’s family support, and in light of the material before the Court, the following submissions were advanced:

Counsel for Mr Ibrahim contended that the preceding submissions, and the material referred to therein, support a finding that, in the event of deterioration of his mental health, Mr Ibrahim would obtain treatment in an inpatient unit as a voluntary patient, or as an involuntary patient if he becomes a risk to himself or others. Reliance, in that respect, was also placed on Annexure B to Mr Ibrahim’s May Submissions, in order to contend that it is apparent that Mr Ibrahim is proactive about seeking inpatient treatment and/or connecting with the authorities (including the parole authorities) when he becomes mentally unwell. Thus, it was contended that the evidence before the Court supports a conclusion that, when the mental health of Mr Ibrahim deteriorated in the past, either he or his family have ensured that he is admitted to a psychiatric inpatient unit, or that he consults with his mental health worker.

Counsel for Mr Ibrahim also relied upon provisions of the Mental Health Act. It was submitted that if Mr Ibrahim does become sufficiently unwell to require inpatient treatment, the law requires that, if he is a risk to himself or others, then he must not be discharged from hospital, as set out in ss 34-49 of the Mental Health Act. This was acknowledged by Dr Dayalan in his evidence.

I accept that Dr Dayalan referred to the support received from Mr Ibrahim’s family members, including assisting him in receiving treatment in an inpatient psychiatric facility in the context of acute relapse. Dr Dayalan referred to support from family as a protective risk mitigating factor. Further, the Eagle Report identified that the family is highly supportive and has insights into his mental condition. I also accept that the provisions of the Mental Health Act (namely, ss 34-49) may be engaged to prevent Mr Ibrahim’s discharge if he is held to be a risk to himself or others.

However, the court appointed experts and Dr Eagle have each expressed the view that, in the context of a deterioration in Mr Ibrahim’s mental health, his family members have the potential to be perceived as “persecutors” and so to become victims of violence, namely, violence that Mr Ibrahim perceived to be justified by extreme religious or ideological beliefs. There is evidence before the Court that Mr Ibrahim’s family members have, in the past, been victims of his threatening conduct.

Thus, whilst it is clear that Mr Ibrahim’s family are aware of his mental health issues and have been supportive of him, they have not, when he has been released into the community, been able to prevent him from engaging in drug use or discontinuing necessary medical treatment. Nor have they prevented him from committing further criminal offences, including violent offences.

That finding is by no means a criticism of Mr Ibrahim’s family but rather a reflection of the mental health conditions afflicting Mr Ibrahim and the risk, in light of the evidence before the Court, that he poses to both the community and his family. My earlier conclusions regarding the lack of insight by Mr Ibrahim into his mental condition, his non-compliance with medical treatment, his failure to undertake treatment programs and his tendency to provide favourable responses to psychologists to a strategic end are also relevant in this context.

There is not, in my view, a proper basis on the evidence to conclude that, if an ESO were not to be made, Mr Ibrahim’s family would be able to provide support of the kind necessary to materially reduce the risk of Mr Ibrahim engaging in conduct of the kind regulated by the THRO Act. This conclusion is not diminished by the existence of a CTO as I will discuss below.

Mr Ibrahim relied upon the fact that he is subject to a CTO dated 10 March 2021, which brings with it considerable enforcement powers.

Putting aside momentarily the issue of enforcement powers under the CTO, Mr Ibrahim’s submissions were as follows:

As to enforcement powers under the CTO, Mr Ibrahim highlighted s 53(3) and (5) of the Mental Health Act. Those provisions, relevantly, provide:

In light of the operation of s 53 of the Mental Health Act, Mr Ibrahim submitted:

Reliance was also placed upon the powers of the police under the Mental Health Act: ss 58 and 59. Those provisions, relevantly, provide:

As to the relevance of those provisions, Mr Ibrahim advanced the following submissions:

Counsel for Mr Ibrahim contended that any risk (and noting that none was conceded) can be managed sufficiently in the community under a CTO which is a powerful tool to ensure Mr Ibrahim complies with his medication and treatment regime.

In my view, the evidence in these proceedings amply demonstrates why the risks posed by Mr Ibrahim would be better managed by an ESO rather than relying on an existing CTO regime. Further, and more directly relevant to s 20(d), the existence of the CTO does not, whether taken singularly or in combination with other factors relied upon by Mr Ibrahim, constitute a proper basis for concluding that, to the requisite standard, Mr Ibrahim does not pose an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

The gulf between an ESO and the matters which may be addressed in a CTO have been discussed in many authorities of this Court dealing with the CHRO Act and the THRO Act: see State of New South Wales v Davis (Preliminary) [2020] NSWSC 754 (“Davies”) (per Hoeben CJ at CL); State of New South Wales v Dunn [2019] NSWSC 426 (per Wilson J); State of New South Wales v BP (No 2) [2019] NSWSC 806 (“BP No 2”) (per Wright J); see also Attorney-General for New South Wales v Riley (Final) [2019] NSWSC 1782 (“Riley”).

In Davis at [83(2)], Hoeben CJ at CL stated “an ESO is capable of regulating the defendant’s conduct in ways that a CTO is not (for example, by prohibiting the use of substances)” (that involved an application under the CHRO Act).

Similar remarks have also been made in the context of cases arising under the THRO Act. For instance, in State of New South Wales v Dunn, a case involving an offender with significant mental health issues, Wilson J observed as follows (at [209]):

Likewise, in BP (No 2) at [41], Wright J observed:

Thus, whilst those “enforcement mechanisms” may have the potential to be coercive, they can in no sense be considered equivalent to those that exist under an ESO (an order which, ultimately, has the backing of the criminal law: see s 30 of the THRO Act).

Given later discussion of Mr Ibrahim’s response to both CTOs and FCTOs, it is appropriate to mention the judgment in Riley, a matter involving the supervision of an offender with mental health issues. In that matter, the Court considered expert opinion regarding the appropriateness of a stringent FCTO that would provide “comprehensive care” as opposed to the offender’s management under a “less restrictive” CTO. An extract of Riley at [204]-[204] follows:

None of the experts who provided reports to the Court endorsed the suggestion that an ESO should not be ordered because (or notwithstanding that) Mr Ibrahim was subject to a CTO. To the contrary, Dr Eagle opined that Mr Ibrahim should be subject to a CTO as an additional risk management intervention. Dr Dayalan suggested that, if an ESO were made, compliance with depot antipsychotic medication should be included as a condition of the ESO.

Mr Ibrahim has been subject to a CTO (or a FCTO) on at least 6 occasions prior to the present occasion. The evidence establishes that these CTOs or FCTOs have proven ineffective in:

In the Dayalan Report, Dr Dayalan opined:

In his evidence-in-chief, Dr Dayalan opined that a CTO may be insufficient, in the case of Mr Ibrahim, to monitor and manage his risk. Further, difficulties may arise with respect to ensuring Mr Ibrahim’s compliance, particularly in the community, with mental health treatment and prevent a relapse of substance abuse. That evidence, in context, is extracted below:

Dr Dayalan also gave evidence that, although there were ways to enforce a CTO where the patient was not complying with its terms, “in essence, it doesn’t always happen where, you know, patients become non-compliant with treatment … The CTO allows for the treating clinician to agree for the person to just take oral medication rather than the depot medication. And those instances, there's a high likelihood of non-compliance, because it can't be ensured”.

In cross-examination, Dr Dayalan rejected the contention that the involvement of the AOT would mitigate the risk of Mr Ibrahim not complying with a CTO. During cross-examination, counsel for Mr Ibrahim also put to Dr Dayalan that should Mr Ibrahim’s mental health deteriorate, that deterioration would be identified by treating professionals and the AOT and the involuntary admission process under the CTO could be set in place. Whilst Dr Dayalan acknowledged the scenario put to him as a possibility, particularly in instances of “gross deterioration”, “If they’re able to identify it”, the expert’s answer was accompanied by the following qualifier: “But quite often, sometimes it's not that easy to pick it up in an outpatient clinic”. His evidence was to the effect that in the community, the symptoms of the deterioration of a “mental health consumer’s” condition would not necessarily be easily identified.

Dr Dayalan opined that a caseworker or psychiatrist treating Mr Ibrahim under a CTO, whom may identify deterioration in Mr Ibrahim’s mental health, would not significantly mitigate the risk that Mr Ibrahim may pose to himself and others in a deteriorated mental state. Dr Dayalan opined, in that respect, that deterioration in Mr Ibrahim’s mental health as an outpatient has not always been identified and referred to instances whilst Mr Ibrahim was in gaol where his mental health deteriorated and he was experiencing symptoms of psychosis but such symptoms were not readily apparent to his treating psychiatrist. An extract of that evidence appears below:

The viability of an enforceable CTO is affected by the accessibility of the patient, which is more difficult in the case of a person suffering schizophrenia. The assistance of family only negates the risk to a limited extent. Dr Dayalan, relevantly, opined in the following answers:

Further, Mr Ibrahim’s CTO is due to expire no later than 22 October 2021. There is no guarantee that Mr Ibrahim will be subject to a CTO for a period any longer than 6 months from the date of the final hearing of the State’s application for an ESO. The preconditions for the making of such an order under the Mental Health Act are stringent (see ss 53(3) and (3A)); are wholly focused on the health of the affected person (consistently with the objects in s 3 of that Act); and do not require the Mental Health Review Tribunal to consider the risk that the affected person poses to the community or any risk of offending. Further, the Mental Health Act makes no express provision for the Attorney General, as the Minister administering the THRO Act, to make submissions.

Mr Ibrahim made a particular submissions as to why the judgment of the Court of Appeal in Naaman No 2 illustrates why the State has failed to establish that Mr Ibrahim posed an unacceptable risk of committing a serious terrorist offence if not kept under supervision under an ESO.

Mr Ibrahim’s submission, in that respect, was as follows:

The relevant passages of Naaman No 2, referred to in preceding submission, are extracted below (at [3]-[4], [69] and [97]-[98]):

I accept the submission of the State that care needs to be taken in drawing comparisons between different cases arising under the THRO Act or for that matter the CHRO Act. Certainly, it is necessary to delve deeper than what appeared to be bare similarities. As Basten JA observed in Lynn at [116], the making of an ESO “self-evidently involves an evaluative assessment of the offender and the risk posed to the community”.

As the State submitted, to the extent that Mr Ibrahim puts in issue his capacity to form intentions required for the offence of engaging in a terrorist act contrary to s 101.1 of the Criminal Code, there is no evidence before the Court that Mr Ibrahim has ever been considered as being incapable of forming the requisite intention for the past offending referred to earlier in this judgment. Nor has he been found unfit to be tried.

The State pointed to the Psychiatric Report of Dr Strum, forensic psychiatrist, dated 22 September 1999. In that report, Dr Strum considered Mr Ibrahim as fit as to be tried for particular offences.

I will deal more broadly with the concept of a “terrorist act” and a “serious terrorism offence” in my conclusions below. It is sufficient to note, at this juncture, that, for the purposes of this contention advanced by Mr Ibrahim, a terrorism offence goes well beyond the offence of engaging in a terrorist act (see Naaman No 2 at [37]) and would include preparation and planning.

That returns attention to the decision in Naaman No 2 and the distinguishing features between that matter and the present matter.

In Naaman No 2, the offender at issue had a history of engaging in acts of violence that the Court of Appeal described as “reactionary and unpremeditated” or “spontaneous”: see Naaman No 2 at [4] and [66]. Indeed, as Fagan J stated it at first instance, “the defendant’s past violence has not been of a high level and has not been premeditated. He has not used violence in furtherance of other crimes but, for the most part, only in reaction to being caught”: see State of New South Wales v Naaman (Final) [2018] NSWSC 1635 at [82]. Mr Ibrahim, by contrast, has had a long history of engaging in acts of violence that are instrumental, rather than reactive; that is, in acts of violence that are essentially goal-oriented or intended to achieve particular results. Mr Ibrahim also has a long history of using weapons, including firearms.

Mr Ibrahim contended that the risk posed by him was remote. He submitted there was both a low risk of “something” occurring and there was an absence of evidence that any risk could be significant. The following factors were relied upon to demonstrate those propositions:

It was contended that, accordingly, an evaluation of the manifestation of the risk and the seriousness of the outcome of the risk in this case must be that it is insufficient to constitute an unacceptable risk.

Many of the premises upon which the contentions are based have been earlier discussed in this judgment and resolved adversely to Mr Ibrahim with respect to the ultimate submission he makes as to the fifth precondition under s 20(d) of the THRO Act. More significantly, these contentions need to be considered in the light of the entirety of the evidence bearing upon the consideration as to whether the precondition has been met. Those considerations are encapsulated below, without unnecessarily repeating that which appears earlier in this section of my judgment.

Overall, the Court is satisfied to a high degree of probability that Mr Ibrahim poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.

The evidence demonstrates that there is a real risk of Mr Ibrahim engaging in an act of violence that is justified by extreme religious or ideological beliefs, most likely motivated by a sense of grievance and directed against “perceived persecutors” and other persons considered to warrant retribution for past wrongs including government officials, clinicians, members of the public identified as “hypocrites” or non-believers and his family if Mr Ibrahim was not supervised under an ESO. The acts of violence may include the use of firearms or other weapons.

As mentioned, I do not repeat the evidentiary basis for that conclusion, which is set out at length earlier under this heading of the judgment, but by way of summary (and with some elaboration), point to the factors below. In doing so, I am mindful of the fact that Mr Ibrahim has neither made a pledge of loyalty to any terrorist organisation nor used any image or symbol which supports or advocates for a terrorist organisation. The factors are as follows:

It has earlier been discussed in this judgment the term “terrorist act” as used in s 10(1)(c) of the THRO Act and the relationship of that concept with Pt 5.3 of the Criminal Code. I have also discussed authority as to the definition of a “terrorist act” in the Criminal Code.

Acts of violence of the kind I have described above, if committed, would be capable of constituting a “serious terrorism offence” within the meaning of the THRO Act and, in particular, the offence of engaging in a terrorist act contrary to s 101.1 of the Criminal Code. In that respect the following factors may be noted:

In any event, the concept of a serious terrorism offence goes beyond the offence of engaging in a terrorist act: Naaman No 2 at [37], and includes any preparatory or planning act.

The term “serious terrorism offence” is defined in s 4(1) of the THRO Act as an offence against Pt 5.3 of the Criminal Code for which the maximum penalty is 7 or more years of imprisonment. A number of number of offences meet this description, including engaging in a terrorist act, which includes both an action and the “threat of action” (s 101.1), possessing things connected with terrorist acts (s 101.4), collecting or making documents connected with a terrorist act (s 101.5) and planning or doing any act in preparation for a terrorist act (s 101.6).

In the Klamer Report, Dr Klamer specifically drew attention to the risk of Mr Ibrahim committing a “serious terrorism offence” other than engaging in a “terrorist act” per se.

It is also useful to note the following principles, albeit with some repetition. In Naaman No 2, the Court of Appeal referred to the fact that the State had not particularised the serious terrorism offence upon which it relied, but did not suggest that there was any requirement of particularisation: Naaman No 2 at [39]. In Alam at [129], Wilson J held that it is not necessary for the Court to specify the serious terrorism offence as part of the Court’s risk assessment function under the THRO Act. In Cheema No 1 at [189], Johnson J agreed with this statement and observed further that “It is sufficient if the Court is satisfied that the Defendant poses an unacceptable risk of committing ‘a serious terrorism offence’. This extends far beyond the need for there to be a risk that the Defendant will himself commit a violent act or acts which fall within the definition of ‘terrorist act’”.

Counsel for Mr Ibrahim correctly submitted that where the Court is satisfied as to the preconditions set out in s 20 of the THRO Act, there exists a discretion as to whether to make an ESO: Naaman No 2 at [29(6)]; Lynn at [47]-[48], [64], [82] and [149]; Kamm at [61], [168], [170]-[177].

Mr Ibrahim advanced submissions to support a contention that the Court should not exercise its discretion to make an ESO. The factors relied upon by Mr Ibrahim as supporting the exercise of a discretion in favour of Mr Ibrahim were as follows:

As is evident from the permissive terms of ss 20 and 25(1) of the THRO Act, even where the Court is satisfied as to the five preconditions set out in s 20, it nevertheless retains a discretion whether or not to make an ESO: see Naaman No 2 at [29(6)]; Lynn at [47]-[48], [64], [82], [149]; Kamm at [61], [168], [170]-[177]. However, in the context of the CHRO Act, where the preconditions for the making an ESO are met, “it would be an unusual case before the [C]ourt would decide in its discretion not to make an ESO”: Kamm (Final) at [46].

In determining whether or not to make an ESO, “the safety of the community must be the paramount consideration”: s 25(2) of the THRO Act.

In addition, the Court is required to take into account the matters set out in s 25(3). A number of these matters overlap with those set out in s 11 of the THRO Act.

Counsel for Mr Ibrahim was correct to submit that in determining whether or not to make an ESO, and in deciding the conditions for an ESO, the Court may take into account matters such as the impact of the ESO on the offender’s liberty and privacy (matters which are not to be taken into account in determining whether the offender poses an unacceptable risk): see, for example, Lynn at [129]-[131], [148]-[149].

Bearing in mind those principles and the contentions advanced by Mr Ibrahim, the Court was nonetheless of the view that it was appropriate, in the exercise of its discretion, to make an ESO in this case subject to certain conditions and for a particular duration to which I will return below.

That assessment is conditioned by the factors to which the Court gave consideration to in reaching a conclusion as to the question of unacceptable risk. The Court has also had regard to the earlier discussion as to the significance of the CTO operating with respect to Mr Ibrahim under the management of an AOT. The earlier consideration of that question with respect to unacceptable risk also applies with respect to the exercise of the Court’s discretion. It follows that I do not consider the existence of a CTO (or the work of an AOT) when considered singularly or in combination with other factors warrant the exercise of a discretion not to make an ESO in this case.

I now return to the question of Mr Ibrahim’s mental health in that respect and, in light of the introduction given under the previous heading, without revisiting the earlier conclusions reached in this judgment. It is sufficient to note that the court appointed experts and Dr Eagle each opined that the risk of Mr Ibrahim engaging in conduct capable of constituting a serious terrorism offence was intimately connected to a deterioration in his mental health condition.

In submissions made on behalf of Mr Ibrahim as to the exercise of the Court’s discretion, counsel for Mr Ibrahim relied upon his long standing mental illness and the consequential burdens faced by him on a daily basis in meeting the challenges of living with various serious symptoms of the same as well as the associated distress and dysfunction which follows when Mr Ibrahim deteriorates into delusion. Counsel for Mr Ibrahim went so far as to suggest that the further deprivation to his liberty or privacy under an ESO might worsen his mental health condition.

The contention that Mr Ibrahim’s mental health condition may bring with it many burdens or difficulties may readily be accepted. However, so too may the State’s submission, which correlates to the objects of the THRO Act, that Mr Ibrahim’s mental illness is a reason that militates in favour of making an ESO not against it. Ultimately, in my view, the correct balancing of discretionary considerations, in that respect, favours the making of an ESO, particularly having regard to the safety of the community and its protection.

In the circumstances, it is appropriate, in my view, to make an ESO for a duration and under conditions discussed below.

The court appointed experts were not in agreement as to the appropriate term of any ESO imposed by the Court. I now turn to a summary of the evidence of the court appointed experts with respect to duration.

As to the “clinical appropriateness of the proposed duration” of 3 years sought by the State, in the Dayalan Report, Dr Dayalan opined:

During cross-examination, Dr Dayalan suggested that an ESO would “cause distress”. The follow passage of transcript was relied upon by Mr Ibrahim:

During re-examination, Dr Dayalan, relevantly, opined:

The State contended that the evidence of Dr Dayalan on re-examination suggests that the expert was not opposed to a longer duration. I will return to those submissions below.

In the Klamer Report, Dr Klamer, relevantly opined:

She did not expand upon that opinion at the hearing.

As to duration, the State contended that a period of 3 years was the appropriate tern for any ESO made in respect of Mr Ibrahim. In support of that contention, in the State’s Primary Submissions, the State advanced the following submissions:

In closing oral submissions at the hearing, the State supplemented its submission with reference to the evidence of Dr Dayalan:

In the State’s May Submissions, the following further submissions were made with respect to duration:

Counsel for Mr Ibrahim submitted that if an ESO was made, that the duration should be for no longer than 1 year, “which one year period would include the period he has already [been] subjected to under the ISO”. It was further submitted that a shorter duration “would ensure the safety of the community, and also ensure the Defendant is not subjected to an ESO in circumstance where he is no longer a risk and where it has a negative impact upon his mental health”.

In support of that submission, counsel for Mr Ibrahim advanced the following submissions:

Having closely considered the written and oral submissions of the parties, in the light of the evidence in the proceedings, I have come to the conclusion that the Court should make an ESO for a period of 3 years. Dr Klamer clearly preferred a 3 year duration for any ESO made. Whilst it is true, Dr Dayalan raised concerns as to the need for review of the restrictive nature of conditions imposed and acknowledged the potential for supervision orders, generally, to cause Mr Ibrahim distress (as opposed to exacerbating his mental condition), I do not accept his evidence as framed by counsel for Mr Ibrahim as firm support for a 1 year duration. Rather, I accept the view of his evidence contended for by the State, namely, a longer duration may be imposed but the conditions should be reassessed at a 1 year review with the input of a mental health professional. To the extent necessary, whilst ultimately at the discretion of the enforcing officer, I would endorse that recommendation and proceed upon the basis that the enforcing officer will adopt a practical and constructive approach to the conditions applying to Mr Ibrahim in the light of his circumstances.

In light of my findings, set out earlier in this judgment, with respect to the range of dynamic risk factors identified as relevant for Mr Ibrahim, as well as the evidence as to his documented history of non-compliance with supervision orders, I find the imposition of a 3 year order appropriate in all the circumstances.

Under s 29(1A), the imposition of certain conditions is mandatory unless the Court “orders differently”. The mandatory conditions include conditions requiring the offender:

The following principles are relevant to the Court’s power to impose conditions under s 29(1) of the THRO Act:

The areas of dispute with respect to conditions were clearly and helpfully delineated in tabular form in a document produced by the parties and marked Ex 8 in the proceedings. The table was divided into three columns:

At the outset, it may be noted, in the light of the agreed position reached with respect to condition 48, conditions 49 and 52 were not pressed by the State.

The remaining disputed conditions concerned the following proposed conditions:

The Court’s rulings, in this respect, were made by reference to Ex 8. I now turn to my reasons for those rulings.

Condition 1 as set out in the Schedule and proposed by the State was in the following terms:

This is a prescribed condition: s 29(1A)(a).

Mr Ibrahim agreed to condition 1, subject to the inclusion of words to the effect of the following: “should a medical emergency occur the defendant will inform the enforcement officer as soon as practicable”. The State did not support the variation proposed by Mr Ibrahim.

The State contended that the condition, in the terms proposed, was necessary to ensure a “minimum level of supervision” and “allows enforcement officers to intervene in situations of emerging or increasing risk”. That submission was supported with reference to the evidence of Mr Bagley.

In Mr Bagley’s affidavit of 23 April 2021, he deposed:

The State further submitted that a schedule of conditions enables an enforcement officer to undertake an advance risk appraisal of Mr Ibrahim's proposed locations and activities and ensures prosocial programming (boredom being a risk factor leading to drug use/deterioration in mental health for Mr Ibrahim).

The Court ultimately accepted the position of Mr Ibrahim. Condition 1 was imposed in the terms proposed by the State, together with words to the effect of the addition proposed by counsel for Mr Ibrahim, permitting a reasonable degree of flexibility to accommodate genuine medical emergencies.

Condition 8 and 9 as set out in the Schedule and proposed by the State was in the following terms:

As to condition 8, Mr Ibrahim’s position was one of agreement subject to a limit of $2,000 in lieu of $500. It was contended:

Whilst the State opposed the proposed limit of $2,000, in alternative to its primary position, the State submitted it would not oppose a limit of $1,000.

In support of the imposition of condition 8, the State contended that “this condition allows an enforcement officer to monitor the defendant's finances and detect early warning signs of increased impulsivity”. Further, monitoring of finances may detect expenditure consistent with drug use. In this respect, reliance was placed upon the evidence of DSC Patch. Further, it was submitted, recent CSNSW Intelligence Reports note Mr Ibrahim’s activities in sourcing and directing transfers of funds, and involvement in obtaining contraband, whilst in prison.

DSC Patch gave the following evidence in his affidavit of 23 April 2021 (which also applied to condition 7, which was not opposed):

Dr Eagle observed that Mr Ibrahim’s organisational capacity and access to funds was likely to reduce when his mental health is less stable. She opined:

It is also relevant to note the sentencing remarks of Charteris DCJ. As earlier mentioned, when being sentenced for his 2002 armed robbery offences, Charteris DCJ had emphasised the “disturbing feature that [Mr Ibrahim] had access to a gun” and the “troubling” lack of evidence “as to where he acquired the gun or what he did with it after the commission of the offences”.

After considering the respective submissions of the parties and, in particular, the evidence of Dr Eagle and DSC Patch, the alternative condition proposed by the State was imposed. Whilst it is true that Dr Eagle noted a decreased capacity for Mr Ibrahim to organise large funds when his mental health is less stable, that observation did not detract from the fact Mr Ibrahim had previously engaged with substantial sums of money. Further, I accept the submission of the State that monitoring of spending in excess of $1,000 enables the enforcement officer to monitor for signs of increased impulsivity and that such monitoring may also be relevant to the risk factors associated with substance use. The condition, in my view, serves as an appropriate means of monitoring risk factors associated with Mr Ibrahim in conjunction with other controls within the schedule of conditions.

In the light of the ruling in condition 8, condition 9 was not pressed.

Condition 10 as set out in the Schedule and proposed by the State was in the following terms:

The condition is a prescribed condition: s 29(1A)(b).

The court appointed experts both gave evidence with respect to electronic monitoring. Dr Eagle opined:

Dr Dayalan observed:

Mr Bagley also, relevantly, deposed:

As to the evidence of Mr Bagley, counsel for Mr Ibrahim contended that the rationale offered by Mr Bagley was “not specific” to the circumstances of Mr Ibrahim and rather, “demonstrates that the condition is being imposed to make it easier for the electronic monitoring officers to track his movements”. The condition is opposed for “not targeting [Mr Ibrahim’s] risk factors”.

Counsel for Mr Ibrahim further contended that, given any risk that he may pose only arises when his mental health deteriorates and he suffers persecutory delusions, the condition proposed by the State, in this respect, “has [the] potential to exacerbate any persecutory delusions [Mr Ibrahim] may experience and therefore does not mitigate his risk”. Counsel for Mr Ibrahim submitted that the condition was “onerous” and submitted that visible 24 hours per day monitoring may have the reverse effect. Hence, it does not go towards mitigating any risk that he poses.

The State pressed the condition and advanced the following submissions:

In light of the material before the Court, in particular, having regard to the risks identified by the court appointed experts and Dr Eagle with respect to Mr Ibrahim’s limited insight into his offending and his history of non-compliance, the Court ruled it appropriate, in all the circumstances, that condition 10 be imposed as set out in the Schedule. The Court was not directed to any evidence that would support an order against the imposition of the prescribed condition.

Condition 14 as set out in the Schedule and proposed by the State was in the following terms:

Each of the experts addressed considerations of risk relevant to the imposition of a curfew:

Mr Bagley, relevantly, deposed:

Counsel for Mr Ibrahim submitted that, subject to amendment, the curfew condition was not opposed. It was proposed that the curfew should be of 11pm to 6am. That variation was supported by the following submissions:

The State opposed the variation suggested by Mr Ibrahim. However, as an alternative position, the State submitted that it “would agree to a curfew of 10:00pm to 6:00am”. It was submitted that the condition compliments other controls, assists with monitoring evening activities and ensures that risk-indicating behaviours are confined to daytime, unless otherwise approved. Reference, in this respect, was again made to the evidence of Mr Bagley.

The Court accepted the submissions of Mr Ibrahim and adopted the suggested amendment by counsel for Mr Ibrahim. The adjustment is not at odds with the evidence of Mr Bagley, noting that the condition still enables effective monitoring of activities during the evenings. However, the extension to 11pm, as opposed to 9 or 10pm, provides Mr Ibrahim with the ability to attend social gatherings with positive associates, which may occur in the evening. The alternative curfew proposed by counsel for Mr Ibrahim is particularly appropriate, in the circumstances of Mr Ibrahim, noting that the evening hours have not been shown to be of particular significance to his prior offending. This condition is primarily serving as a means of monitoring that compliments other controls in the schedule of conditions.

Conditions 25-28 as set out in the Schedule and proposed by the State were in the following terms:

The following evidence of the court appointed experts, Dr Eagle and Dr Strum is relevant to this consideration:

As to conditions 25-26, counsel for Mr Ibrahim advanced the following submissions in opposition to their imposition:

The State pressed the conditions in the terms proposed. It was submitted that the conditions were required in the light of Mr Ibrahim’s long history of abusing illicit drugs and prescription medicines. The use of drugs is tied to deterioration in Mr Ibrahim's mental health condition, which is, in turn, tied to his risk of committing a serious terrorism offence. That submission was supported with reference to the evidence of Mr Bagley.

As to condition 27, counsel for Mr Ibrahim advanced the following submissions in opposition its imposition:

The State’s alternative position, in relation to condition 27, was for the form of the condition imposed on the ISO, namely:

The State again relied upon the evidence of Mr Ibrahim’s a long history of abusing illicit drugs and prescription medicines and its submission advanced supporting the imposition of conditions 25-26.

As to condition 28, counsel for Mr Ibrahim sought to amend the condition to allow Mr Ibrahim to gamble with an approved fortnightly limit of $200. Counsel for Mr Ibrahim proposed the following wording: “the defendant be allowed to gamble with an approved fortnightly amount of $200.00. The defendant must not gamble beyond that limit, unless approved by an enforcement officer”.

The defendant submitted, in that respect, that gambling is a legal recreational activity that should not be taken away by this condition. The condition, it was contended, is “punitive in nature because it does not address or mitigate any presented risk shown by Mr Ibrahim”. By the proposed amendment, Mr Ibrahim sought to exercise his right to lawfully gamble.

As to condition 28, the State pressed the condition and, in that respect, relied upon evidence of Mr Ibrahim having engaged in excessive gambling at a time when his mental health deteriorated. Reference was made to the evidence of Mr Bagley:

Upon consideration of the evidence before the Court and the respective submissions of the parties, the Court made the following rulings (with reference to Ex 8):

The reasons for those rulings are as follows:

Condition 36 as set out in the Schedule and proposed by the State was in the following terms:

The following evidence of the Drs Eagle and Dayalan is relevant to the consideration of condition 36:

Mr Bagley deposed (with respect to conditions 35 and 36):

Counsel for Mr Ibrahim opposed the condition as proposed and advanced the following submissions:

In reply, the State contended that the condition as proposed provides enforcement officers with a specific and detailed knowledge of Mr Ibrahim's risk factors. This means they are in a better position to respond immediately to mitigate any developing risk (as opposed to medical professionals, who may not be aware of the implications for community safety). That submission was supported with reference to the evidence of Mr Bagley.

Having regard to the evidence of the experts, in particular their respective opinions as to risks associated with relapse as well as Mr Ibrahim’s history of non-compliance, the Court accepted the submissions advanced by the State, in this respect. Furthermore, I note my earlier discussion regarding the distinctions between a CTO and an ESO.

Condition 36 was imposed in the terms proposed by the State.

Condition 40-44 as set out in the Schedule and proposed by the State were in the following terms:

Dr Eagle, relevantly, opined:

Dr Dayalan, relevantly, opined:

Counsel for Mr Ibrahim opposed the imposition of conditions 40-44. The following submissions were advanced:

The State pressed each of the conditions and submitted that they operate together to allow enforcement officers to monitor Mr Ibrahim’s associations and activities, including any contact with extremists. The State also relied upon a CSNSW Intelligence Report dated 5 October 2019 to contend that Mr Ibrahim “is also not a naïve user of electronic communications … Mr Ibrahim was able to co-ordinate a three way call for the purpose of obtaining funds to be transferred into various bank accounts”. It was also noted that condition 40 was a prescribed condition: s 29(1A)(m).

On balance, the Court accepted the position taken by the State that the conditions operate together to allow enforcement officers to effectively monitor Mr Ibrahim. Whilst I have had regard to the evidence of Dr Dayalan, who noted the potential impediment of such conditions upon his mental health if imposed for “protracted” periods of time, presently, I had found the compelling opinions of Dr Eagle as to the risks associated with relapse and her observation that “I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance”. Further, Dr Eagle opined that Mr Ibrahim may be particularly susceptibility to such anti-social influence in times of relapse. I find the conditions to be an appropriate means of monitoring Mr Ibrahim so as to effectively manage those risk factors.

Conditions 40-44 were imposed in the terms proposed by the State.

Condition 51 as set out in the Schedule and proposed by the State was in the following terms:

As to the imposition of condition 51, the State once again relied upon the evidence of Mr Bagley. In relation to conditions 48, 50 and 51, he deposed:

Whilst neither conditions 48 or 50 were opposed by Mr Ibrahim, counsel for Mr Ibrahim sought a variation to the proposed form of condition 51, namely, “that the defendant is allowed to associate with Zohar Abdullah, the partner of the defendant’s sister Manal Ibrahim”.

Counsel for Mr Ibrahim further contended:

The variation was opposed by the State.

Whilst the submission of Mr Ibrahim is understandable, noting the familial connection, namely, Mr Abdullah being his brother-in-law, in my view, in the circumstances, it is appropriate that such contact, at this stage, is initially limited. Further, by the terms of the condition, Mr Ibrahim may apply to his enforcement officer to seek permission to engage with Mr Abdullah. Thus, the condition includes sufficient flexibility should Mr Ibrahim seek to attend a family event in which Mr Abdullah may be present. It may be expected the condition will be applied in a constructive and practical manner.

In the result, the Court imposed the condition as proposed by the State.

Conditions 55-56 were set out in the Schedule and proposed by the State were in the following terms:

Mr Bagley, relevantly, deposed:

Mr Ibrahim opposed both conditions. It was submitted:

In reply, the State contended:

Both conditions are necessary for the purpose of monitoring Mr Ibrahim. They are not, in my view, unduly burdensome. The requirement that Mr Ibrahim be photographed within a week of the commencement of an order or following any significant change in appearance is plainly relevant to monitoring. Further, the related condition that permission be obtained prior to any significant change is, once again, plainly relevant to enabling the enforcement officer to effectively monitor Mr Ibrahim. Mr Ibrahim is not forbidden from changing his appearance, he must simply obtain approval prior to any drastic changes. Having regard to the evidence of Mr Bagley, I accept the submission of the State that such a condition is necessary in order to limit Mr Ibrahim’s ability to avoid detection through a change of appearance.

As such, the Court ruled that the form of conditions that should be imposed correspond to the primary position of the State.

The Court confirms its orders of 20 May 2021.