State of New South Wales v Cheema

Supreme Court of NSW|2020-06-11|Before: Johnson J, Mr P, Dr J

2007] HCA 33 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 Texts Cited: --- Category: Principal judgment Parties: State of New South Wales (Plaintiff) Ahsan Kamal Cheema (Defendant) Representation: Counsel: Mr AC Casselden SC; Mr S Robertson; Mr P Aitken (Plaintiff) Mr MA Robinson SC; Dr J Lucy (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2020/156573 Publication restriction: ---

State of NSW v Cheema (Preliminary) - Schedule A - 9 July 2020 (66519, docx) Judgment

JOHNSON J: By Summons filed on 26 May 2020, the Plaintiff, the State of New South Wales, seeks orders under the Terrorism (High Risk Offenders) Act 2017 ("THRO Act") with respect to the Defendant, Ahsan Kamal Cheema.
The initial relief sought by the Plaintiff involved the appointment of a psychiatrist and psychologist to examine and report on the Defendant under s.24(5) THRO Act together with an interim supervision order ("ISO") for a period of 28 days subject to conditions pursuant to ss.27-29 THRO Act.
An element of urgency surrounded the proceedings as the Defendant's then current sentence was to expire by effluxion of time on 17 June 2020. The Defendant had been living in the community for some time having been released on parole.

Events Leading up to Preliminary Hearing

On 28 May 2020, Bellew J listed the preliminary hearing of the Plaintiff's Summons for hearing on 11 June 2020 with a one-day estimate. His Honour made orders for the Plaintiff and the Defendant to take a number of procedural steps with respect to evidence and written submissions in advance of that hearing.
On 2 June 2020, the Defendant filed and served a Notice of a Constitutional Matter with respect to the proceedings for the purpose of s.78B Judiciary Act 1903 (Cth) ("the s.78B Notice").
In addition, on 3 June 2020, the Defendant served on the Plaintiff a Notice of Motion seeking a permanent stay of the proceedings pursuant to s.67 Civil Procedure Act 2005 and/or the Court's inherent power.
Because of these developments, the Plaintiff requested that the matter be listed before me in circumstances where the preliminary hearing on 11 June 2020 had been allocated to me for hearing. The proceedings were mentioned before me on 4 June 2020 and further directions were given for the conduct of the expanded issues to be considered by the Court including the variation of the estimate of the hearing from one day to two days to proceed on 11 and 12 June 2020.

Hearing of the Defendant's Stay Application and the Preliminary Hearing

The Court undertook the hearing of the Defendant's Notice of Motion seeking a stay of the proceedings and the preliminary hearing of the Summons (and the associated constitutional issue) at a hearing which proceeded on 11 and 12 June 2020.
Mr AC Casselden SC appeared for the Plaintiff with Mr S Robertson and Mr P Aitken, both of counsel. Mr MA Robinson SC and Dr J Lucy of counsel appeared for the Defendant.
The Court had received detailed written submissions on all issues together with affidavits relied upon by the Plaintiff or the Defendant with respect to the various applications to be considered.
Apart from objection to parts of one document, the Plaintiff tendered without objection, a folder containing a number of affidavits and reports (Exhibit A). Included in Exhibit A was a risk assessment report by Dr Kerri Eagle, psychiatrist, dated 15 May 2020 and an expert report of Professor Greg Barton dated 11 May 2020. Professor Barton is an expert in the areas of Islamic extremism, radicalisation and terrorism. The only area of objections related to limited parts of Professor Barton's report.
The Plaintiff also relied upon three folders which accompanied an affidavit of Melissa Cork sworn 25 May 2020 (Exhibit B).
In addition, the Plaintiff read the following affidavits which were not contained within Exhibit A: 1. affidavits of Bernadette Vella affirmed on 28 May 2020 and 10 June 2020 (concerning the preliminary hearing); 2. an affidavit of Justin Hewitt sworn 28 May 2020 (concerning the preliminary hearing); 3. an affidavit of Jeremy Tucker affirmed 5 June 2020 (concerning the preliminary hearing); and 4. an affidavit of Amay Tembe affirmed 10 June 2020 (concerning the stay application).
A folder of documents was tendered for the Defendant containing affidavits and submissions relied upon on the stay application and the preliminary hearing together with the s.78B Notice dated 2 June 2020 (Exhibit 1).
Oral submissions were made on all issues on 11 and 12 June 2020. Mr Casselden SC and Mr Aitken addressed for the Plaintiff on topics other than the constitutional issue, with Mr Robertson making submissions on behalf of the Plaintiff on the constitutional question.
Mr Robinson SC addressed for the Defendant on all issues with Dr Lucy addressing a number of topics on 12 June 2020.
At the conclusion of the hearing, the proceedings were adjourned until 4.00 pm on Monday, 15 June 2020 for the Court to announce its decision.
Prior to the announcement of orders on 15 June 2020, the Court was informed by email that the Plaintiff no longer relied upon the affidavit of Amay Tembe affirmed 5 June 2020 (Exhibit A, Tab 14) and that the Plaintiff no longer relied on s.10(1)(c)(ii) THRO Act in support of the application.

Orders Made on 15 June 2020

On 15 June 2020, I made the following orders: "1 The Defendant's Notice of Motion dated 3 June 2020 seeking a permanent stay of the proceedings is dismissed. 2 An order is made pursuant to s.24(5) Terrorism (High Risk Offenders) Act 2017: (a) appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; (b) directing the Defendant to attend those examinations. 3 An order is made pursuant to ss.27 and 28 Terrorism (High Risk Offenders) Act 2017 that the Defendant be subject to an Interim Supervision Order for a period of 28 days. 4 An order is made pursuant to s.29(1) Terrorism (High Risk Offenders) Act 2017 directing that the Defendant comply with the conditions set out in Schedule A to this Order for the duration of the Interim Supervision Order specified in Order 3 above. 5 An order is made restricting access to the Court's file in this proceeding, such that access would be permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. 6 The Court will publish reasons for making these orders as soon as reasonably practicable."
The conditions imposed as part of the ISO are contained in Schedule A to this judgment.
This judgment contains my reasons for making those orders.

The Defendant's Stay Application

An appropriate starting point is the Defendant's application to stay the proceedings. If this order had been made, then the Court would not have proceeded with the preliminary hearing. Overview of Submissions
It is not necessary to repeat the detailed written and oral submissions made with respect to the stay application. A complete account of the submissions made on the stay application may be found in the detailed written submissions on the stay application and the transcript of oral submissions on this issue (T14-21, 11 June 2020).
Put shortly, it was submitted for the Defendant that the timing of the application brought by the filing of the Summons on 26 May 2020 gave rise to unfairness to the Defendant so that the grant of the exceptional remedy of a permanent stay was appropriate.
It was submitted that a large volume of material had been served by the Plaintiff at times which rendered it practically impossible for the Defendant's legal representatives to prepare to meet the application at the preliminary hearing under the THRO Act. It was submitted that the timing of the provision of material by the Defendant placed pressure on the Court to make a decision in circumstances where it was necessary for orders to be made before the Defendant's sentence of imprisonment expired on 17 June 2020. It was submitted that a permanent stay of the proceedings was necessary to prevent injustice to the Defendant.
In opposing the stay application, senior counsel for the Plaintiff submitted that a number of factors disclosed in the evidence explained the timing of various steps concerning the application and that there was no foundation established by the Defendant for the exceptional remedy of a permanent stay.
It was submitted that the Plaintiff complied with statutory disclosure requirements with it being noted that it was sufficient compliance with s.24(2)(a) if the Defendant is provided with an index of the documents, reports and other information and is given access to them: s.24(2A) THRO Act. The Plaintiff submitted that the point reached in the litigation is a preliminary hearing and not a final hearing, and that this was relevant to the claim of unfairness made by the Defendant.
The Plaintiff submitted, as well, that the legal representatives for the Defendant had been able to consider the material to an extent whereby the constitutional issue had been identified and a range of affidavits filed with respect to the stay application and the preliminary hearing itself. The Plaintiff submitted that the stay application should be refused. Decision
The Defendant bears the onus of proof that a permanent stay of the proceedings should be granted.
In Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, Bell P (Leeming JA and Emmett AJA agreeing) helpfully gathered (at [71]) the principles to be applied where a permanent stay of civil proceedings is sought: "From a brace of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived: (1) The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); (2) A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ); (3) A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatos at [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (4) The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (5) One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ); (6) The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (7) Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); (8) Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and (9) Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ)."
The evidence reveals that the Plaintiff gave some consideration to obtaining an order concerning the Defendant under the THRO Act in 2019. At that time, the expiry date for the Defendant's then current sentence was 20 May 2019. However, circumstances changed arising from the Defendant's conviction on further offences which led to a new expiry date for his sentence of 17 June 2020.
Further, the evidence reveals that a claim of public interest immunity was to be advanced at one point with respect to surveillance device material, but with circumstances changing in March 2020 so that such a claim was not maintained and with this material being relied upon at the preliminary hearing.
Additional material came to light in March 2020 concerning the Defendant's activity on Facebook which required investigation and consideration for the purpose of an application under the THRO Act.
On 15 April 2020, Dr Eagle was briefed by the Crown Solicitor's Office to provide a risk assessment report concerning the Defendant. The Defendant and his legal representatives were aware that such a step was being taken because the Defendant was given the opportunity of participating in an examination by Dr Eagle for the purpose of preparation of a risk assessment report. On 1 April 2020, the Defendant declined that invitation. He was, of course, under no obligation to take part in such an examination. That obligation will arise if orders are made for examination of the Defendant by a psychiatrist and psychologist under s.24(5) THRO Act. However, the Defendant cannot complain that he was unaware that a report was being obtained from Dr Eagle or that he was deprived of an opportunity of participating in an interview with Dr Eagle if he was prepared to do so.
A detailed risk assessment report of Dr Eagle dated 15 May 2020 was provided and, in due course, served upon the legal representatives for the Defendant.
The legal representatives for the Plaintiff obtained an expert report from Professor Barton dated 11 May 2020. That report was provided to Dr Eagle who utilised it for the purpose of preparation of her report.
The principal factual material upon which the Plaintiff relied at the preliminary hearing was provided to Professor Barton and to Dr Eagle and their reports identified and considered that material as part of the process of expressing opinions in their respective areas of expertise.
The evidence reveals that the material considered by Professor Barton and Dr Eagle was served on the legal representatives for the Defendant.
On 29 May 2020, written submissions prepared by counsel for the Plaintiff (for the purpose of the preliminary hearing) were filed and served on the legal representatives for the Defendant. In a manner commonly seen in applications of this type, the Plaintiff's written submissions were detailed (comprising some 55 pages) with extensive references to supporting documentation and the reports of Professor Barton and Dr Eagle.
The Plaintiff's written submissions for the preliminary hearing served the useful purpose of assisting the legal representatives for the Defendant and the Court with respect to issues of law and fact which were to be considered at the preliminary hearing.
It is the case that features of the THRO Act are more complex than provisions of related legislation in the Crimes (High Risk Offenders) Act 2006. The Plaintiff's written submissions addressed aspects of the THRO Act.
A considerable volume of documentation was obtained by the Plaintiff and disclosed to the legal representatives for the Defendant for the purpose of s.24(2) and (2A) THRO Act. The evidence indicated that this disclosure included provision of an index of the documents, reports and other information and the giving of access to documents, reports and other information in compliance with s.24(2) THRO Act.
A complaint is made for the Defendant that all of this was happening at a time close to what became the scheduled date for the preliminary hearing on 11 June 2020. As noted earlier, the urgency surrounding the hearing of that application arose from the need for a decision to be made by the Court before the Defendant's then current sentence of imprisonment expired completely on 17 June 2020.
It has been the experience of the Court that considerable pressure is placed upon the legal representatives for persons who are subject to applications under the Crimes (High Risk Offenders) Act 2006 or the THRO Act arising from the provision of material and the timing of the provision of material. Consequential pressure is then placed upon the Court to consider the material at a preliminary hearing, and to make a decision as to whether orders should be made at the preliminary hearing so that the proceedings go forward to a final hearing.
The number of applications under the Crimes (High Risk Offenders) Act 2006 and the THRO Act has been increasing so that this pressure upon the Court has become more frequent. The Court has sought to meet these demands as best it can using available resources so that preliminary hearings proceed and are determined within appropriate time frames.
I make this observation to emphasise that the general complaint advanced on behalf of the Defendant is not confined to the present case. However, the Defendant seeks the exceptional remedy of a permanent stay of these proceedings so that the matter not go forward to a preliminary hearing at all. Relevant to the question of whether a permanent stay ought be granted are the objects in s.3 THRO Act, which emphasise the functioning of the legislation for the purpose of the safety and protection of the community. The Court is exercising a protective function under the legislation and this is relevant to the present application that there ought be no hearing at all of the Plaintiff's Summons.
I have kept in mind that there is no place at a preliminary hearing for the undertaking of any challenge by cross-examination or otherwise of any person who has stated facts, including expert opinions, in the documentation supporting the Plaintiff's application, nor is there any place to tender contradictory material with these steps being reserved for determination at a final hearing: Attorney General for the State of NSW v Gallagher [2006] NSWSC 340 at [45] (McClellan CJ at CL); State of NSW v Sturgeon [2019] NSWSC 559 at [13] (Garling J).
The preliminary hearing in this case involved the tender of documents, reports and other information, and the making of written and oral submissions by reference to that material, for the purpose of determining whether orders sought by the Plaintiff at the preliminary hearing concerning the Defendant ought be made. This is the process envisaged under the THRO Act. It did not involve of necessity an expectation that the Defendant's legal representatives would have read and taken instructions with respect to every document which had been provided to them in advance of the preliminary hearing. If orders are made at the preliminary hearing, there will be ample opportunity for the legal representatives for the Defendant to take instructions from the Defendant, who is at large in the community, for that purpose.
I have kept in mind that the Defendant has been represented by lawyers working within Legal Aid NSW with considerable experience and expertise with proceedings under the THRO Act and the Crimes (High Risk Offenders) Act 2006. Experienced senior and junior counsel were briefed on behalf of the Defendant and they have appeared in a number of applications of this type in the past.
It is noteworthy, as well, that the legal representatives for the Defendant were sufficiently in command of the material to identify a constitutional issue giving rise to service of the s.78B Notice, as well as the marshalling of material in affidavits and in detailed written submissions addressing various aspects of the matters advanced by the State or on behalf of the Defendant at the hearing on 11 and 12 June 2020.
I bear in mind, as well, that if orders are made concerning the Defendant at a preliminary hearing, the following steps include examination by a psychiatrist and a psychologist and the fixing of an ISO subject to conditions. I have kept in mind the intrusive nature of orders of this type and the interference with the freedom of the Defendant and his exposure to potential prosecution if conditions are put in place as part of an ISO and he is alleged to have breached them.
It is an important feature that the Plaintiff's written submissions for the preliminary hearing identified the material relied upon in such a way that the Defendant's legal representatives were able to participate in the preliminary hearing with such further aspects as were raised in later written submissions being addressed.
Of critical importance is that the stage of the proceedings concerned a preliminary hearing only. This was not a once-and-for-all or final opportunity for the Defendant to seek to resist the making of orders. This is an important factor in considering the complaints about suggested unfairness made on behalf of the Defendant in support of the stay application.
Submissions made on behalf of the Plaintiff and the Defendant both pointed to the impact of the COVID-19 pandemic on the stay application. It was submitted for the Defendant that additional pressures and difficulties arose in attempting to meet the Plaintiff's application at the preliminary hearing because of restrictions on the Defendant and his legal representatives arising from the pandemic. It was submitted for the Plaintiff that the taking of steps in preparation of the application was affected by the pandemic in a number of practical ways, which contributed to the timing of the application itself and the investigation of events in February and March 2020.
I have kept in mind that the events upon which the Plaintiff relied at the preliminary hearing included a Facebook post published in February 2020.
The practical restrictions placed upon legal practitioners, the public and the Courts as a result of the COVID-19 pandemic are well known.
The steps taken by the Plaintiff to determine whether an application should be made under the THRO Act required the gathering of material, which was then provided to Professor Barton for his expert opinion and then to Dr Eagle for her expert psychiatric opinion. That all these steps were being taken at a time when society was restricted in many ways by the COVID-19 pandemic assists an understanding as to why the Summons was not filed until 26 May 2020.
In circumstances where the Defendant seeks the exceptional remedy of the permanent stay of protective proceedings, the surrounding context in which the application was prepared and initiated is significant and fortifies a conclusion that a permanent stay should not be ordered.
The short conclusion with respect to the stay application is that I was unpersuaded that the exceptional remedy of a permanent stay should be granted to the Defendant in this case. It has not been demonstrated that the Defendant was deprived of a fair opportunity to engage, with the assistance of his experienced legal team, in the issues which required attention at the preliminary hearing.
It was for these reasons that I dismissed the Defendant's application for a stay of the proceedings.

Preliminary Hearing of the Plaintiff's Application Under the THRO Act

Before considering the evidence adduced at the preliminary hearing, it is appropriate to set out a number of significant provisions which form part of the statutory scheme under the THRO Act. Relevant Parts of the THRO Act
The THRO Act commenced on 6 December 2017 and has been amended most recently by the Community Protection Legislation Amendment Act 2018.
In the course of the second reading speech for the Terrorism (High Risk Offenders) Bill 2017 ("THRO Bill") (Hansard, Legislative Assembly, 15 November 2017), the Attorney General, Mr Speakman, observed that the legislation would complement the Commonwealth's post-sentence detention scheme for Commonwealth offenders (contained in Division 104 of the Criminal Code (Cth)) and that it "builds on structures in place for the New South Wales post-sentence supervision and detention framework for serious sex and violence offenders".
In the second reading speech for the THRO Bill, the Attorney General said (Hansard, Legislative Assembly, 15 November 2017): "The protection of the community from the ongoing threat of terrorism is of paramount importance to the New South Wales Government. We will do whatever we reasonably can to ensure law enforcement authorities have at their disposal effective powers to keep the community safe."
In many (but not all) respects, the THRO Act is modelled upon the Crimes (High Risk Offenders) Act 2006, a topic to which I will return later in this judgment (at [93] and following). The protection of the community was emphasised in the second reading speech for the THRO Bill 2017 as it was again in the second reading speech of the Attorney General for the Community Protection Legislation Amendment Bill 2018 which amended the THRO Act in a manner which is significant for the present application (Hansard, Legislative Assembly, 13 November 2018).
Section 3 states the objects of the THRO Act: "3 Objects of Act (1) The primary object of this 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. (2) Another object of this Act is to encourage these offenders to undertake rehabilitation."
Sections 10 and 11 are of particular significance to the present application. Section 10 relevantly provides: "10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following: (i) networking or communicating with the person, group of persons or organisation, (ii) using social media sites or any other websites to communicate with the person, group of persons or organisation. (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). (3) In this section: terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code."
Section 11 provides as follows: "11 Determining whether eligible offender is convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender In determining whether an eligible offender is a convicted NSW underlying terrorism offender or convicted NSW terrorism activity offender, the Supreme Court may take into account: (a) the views of the sentencing court at the time the offender was sentenced for the offender's offence, and (b) the views of the sentencing court at the time a person other than the offender was sentenced for an offence if the person was a co-accused of the offender or was convicted of assisting, aiding, abetting, counselling, procuring, soliciting, being an accessory to, encouraging, inciting or conspiring to commit the offender's offence, and (c) evidence adduced in the proceedings for the offender's offence or in proceedings against another person for an offence referred to in paragraph (b), and (d) any relevant terrorism intelligence, and (e) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in the State or elsewhere), and any pattern of offending behaviour disclosed by that history, and (f) the results of any assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the offender's history of behaviour (including any patterns in, or the progression of, that behaviour to date), and (g) any information concerning the offender that the Court considers relevant (including developmental or social factors and behaviour while in custody), and (h) any report prepared by Corrective Services NSW, the NSW Police Force or a prescribed terrorism intelligence authority concerning the offender and the offender's associates and affiliations, and (i) information indicating that current or former associates of the offender have been or are involved in terrorism activities, and (j) any other information that the Court considers relevant."
Section 27 relates to an application for an ISO: "27 Interim supervision order The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
Consideration of an application for an ISO under s.27(b) requires attention to be given to the criteria for making an extended supervision order ("ESO") under s.20 THRO Act which provides: "20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme 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."
Section 21 provides for the determination of risk: "21 Determination of risk For the purposes of this Part, the Supreme 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."
As ss.24(5) and 27(b) require the Court at a preliminary hearing to consider the criteria for making an ESO, it is appropriate to note the terms of s.25 which states: "25 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (h) the likelihood that the offender will comply with the obligations of an extended supervision order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole, or (ii) subject to a control order, or (iii) subject to an earlier extended supervision order or interim supervision order, or (iv) subject to any other order of a court, (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence. (4) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)."
Section 23 THRO Act specifies certain requirements for an application to be made, none of which are in dispute in the present application.
Section 24 concerns pretrial procedures, with s.24(5) containing the statutory test for ordering psychiatric and psychological examination of a person at a preliminary hearing as sought in this case. Section 24(5)-(7) provides as follows: "24 Pre-trial procedures … (5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the eligible offender to attend those examinations. (6) Without limiting subsection (5) (a), the Supreme Court may also make orders appointing any other relevant experts to furnish reports to the Supreme Court in respect of the eligible offender on specified matters. (7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application." Meaning of "Serious Terrorism Offence"
At the conclusion of the preliminary hearing, the Court must make orders under s.24(5) THRO Act for psychiatric and/or psychological examination of the Defendant if it is satisfied that the matters alleged in the supporting documentation (under s.23(3) THRO Act) would, if proved, justify the making of an ESO.
This directs attention to the test for making an ESO in s.20(d) THRO Act, namely that the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing a "serious terrorism offence" if not kept under supervision under the order. The Court is not required to determine that the risk of a person committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence: s.21 THRO Act.
Further, if it appears to the Court at the conclusion of the preliminary hearing that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, then an ISO may be made: s.27(b) THRO Act. Once again, this directs attention to the criteria for making an ESO in ss.20(d) and 21 THRO Act.
It is necessary to say something about the concept of "serious terrorism offence" which is a focal point for these steps.
The term "serious terrorism offence" is defined in s.4(1) THRO Act as follows: "serious terrorism offence means an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment."
The offences caught by the definition of "serious terrorism offence" extend to a wide range of conduct and include engaging in a terrorist act (s.101.1 Criminal Code (Cth), noting the extended definition of "terrorist act" in s.100.1); providing or receiving training connected with terrorist acts (s.101.2); possessing things connected with terrorist acts (s.101.4); collecting or making documents likely to facilitate terrorist acts (s.101.5); doing acts in preparation for, or planning, a terrorist act (s.101.6); directing the activities of a terrorist organisation (s.102.2); membership of a terrorist organisation (s.102.3); recruiting for or participating in the activities of a terrorist organisation (s.102.4); training involving a terrorist organisation (s.102.5); getting funds to, from or for a terrorist organisation (s102.6); and providing support to a terrorist organisation (s.102.7).
The term "terrorist act" is defined as follows in s.100.1(1) Criminal Code (Cth): "… terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public" (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public."
In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44], Gummow and Crennan JJ considered the term "terrorist act" in the Criminal Code (Cth): "What is a 'terrorist act'? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of 'terrorist act'. This was introduced by the 2003 Act. A 'terrorist act' is defined as 'an action or threat of action' which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of 'advancing a political, religious or ideological cause'. Secondly, there must be an intention which is expressed in the alternative. The first alternative is 'coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country'. The second is 'intimidating the public or a section of the public'. The reference to 'the public' is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in sub-s (2) of s 100.1. Action falls outside the definition if it be 'advocacy, protest, dissent or industrial action' and is not intended to cause serious harm that is physical harm to a person, or a person's death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (sub-s (3))."
The Court of Appeal in State of NSW v Naaman (No 2) (2018) 276 A Crim R 30; [2018] NSWCA 328 at [16] described the definition of "terrorist act" in the Criminal Code (Cth) (as picked up in s.4 THRO Act) as being "broad". The Court stated (at [35]): "Accordingly, for the purpose of assessing whether the threat of action is a 'terrorist act', one asks whether the threatened action falls within subs (2) and does not fall within subs (3). Further, if action or threat of action is to be a terrorist act, it must also satisfy both of paras (b) and (c), and so the action must be done or the threat made with the intentions identified in those paragraphs."
In considering the breadth of terrorism offences in the Criminal Code (Cth), emphasis has been placed upon the legislative policy underlying the creation of a range of preparatory offences which serve to criminalise conduct which would not be caught by the general law of criminal attempt. In Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121, Spigelman CJ (McClellan CJ at CL and Sully J agreeing) said (at [66]): "Preparatory acts are not often made into criminal offences. The particular nature of terrorism has resulted in a special, and in many ways unique, legislative regime. It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, e.g. well before an agreement has been reached for a conspiracy charge. The courts must respect that legislative policy."
These principles have been emphasised and applied in later decisions. In Lodhi v R (2007) 179 A Crim R 470; [2007] NSWCCA 360, Barr J (at [211]) observed that ss.101.4, 101.5 and 101.6 Criminal Code (Cth) "make offensive acts of a preliminary nature falling short, some well short, of attempt". In the same case, Price J emphasised (at [229]) that offences under ss.101.4, 101.5 and 101.6 are not crimes of attempt but "anticipatory offences which enable intervention by law enforcement agencies to prevent a terrorist act at a much earlier time than would be the case if they were required to wait for the commission of the planned offence or for an unsuccessful attempt to commit it". Price J observed as well (at [242]) that acts done in preparation for, or planning, a terrorist act undoubtedly can embrace a wide range of conduct.
With regard to the insertion of s.10(1A) THRO Act, the Attorney General stated (Hansard, Legislative Assembly, 13 November 2018): "[The amendment] will clarify the meaning of 'advocating support' ... for the purposes of determining whether a person is a 'convicted NSW terrorism activity offender'… Clarification will be provided through inserting a non-limited list of examples of action that fall within the meaning of 'advocating support for terrorist acts or violent extremism' … [This amendment] will clarify that advocating support for terrorism activity for violent extremism is distinct from the actual commission of a terrorism offence. Advocating support for terrorism activity or violent extremism is an indicator of the potential risk posed by the offender. A determination of risk is made by the Supreme Court …"
What can be seen then is that the broad range of conduct caught by serious terrorism offences in the Criminal Code (Cth) is extended further to include conduct falling within the definition of "convicted NSW terrorism activity offender", as extended further since 2018 by the insertion of s.10(1A) THRO Act. What the Plaintiff Must Establish at the Preliminary Hearing
In the context of the present case, the following matters must be established by the Plaintiff at the preliminary hearing to obtain orders for psychiatric and/or psychological examination of the Defendant together with the imposition of an ISO: 1. the Court must be satisfied that the Defendant is an "eligible offender"; 2. the Court must be satisfied, in the circumstances of the case, that the Defendant is a "convicted NSW terrorism activity offender": s.10; s.20(c)(iii); 3. to order an ISO, it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO: s.27(b); 4. to order psychiatric and psychological examination of the Defendant, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, namely that the Court is satisfied to a high degree of probability that the Defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order: ss.20(d), 24(5) THRO Act; 5. if an ISO is ordered, what conditions are appropriate for inclusion in the ISO: s.29 THRO Act.
In the present case, there is no issue that the Defendant falls within the definition of "eligible offender" so that the first requirement (in 88 above) is satisfied.
The issues litigated with some vigour at the preliminary hearing were the second, third and fourth matters (in 88-(d) above), namely whether the Court was satisfied that the Defendant was a "convicted NSW terrorism activity offender" and if so, whether an ISO should be ordered as well as an order being made for psychiatric and psychological examination. If an ISO was to be ordered, then submissions were made by the parties concerning proposed conditions (88 above). Principles to be Applied at Preliminary Hearing
The task for the Court at the preliminary hearing is to apply the statutory formula in s.24(5) (concerning the appointment of a psychiatrist and a psychologist to carry out examinations of the Defendant) and s.27(b) (concerning the making of an ISO).
In State of NSW v Naaman (No. 2), the Court of Appeal (Basten, Macfarlan and Leeming JJA) described the Court's task at a preliminary hearing as follows (at [17]) (my emphasis): "Broadly speaking, the Act provides for a preliminary application to be made by the State, during which time interim orders, both for supervision and detention, and applications for orders appointing qualified psychologists and psychiatrists to conduct examinations of the person, may be made. An order for extended supervision may only be made if there are reports from at least two psychologists or psychiatrists who have examined the person (see more particularly s 24(5)); the Court in determining whether or not to make the order must have regard to those reports (s 25(3)(a)). Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order."
At the preliminary hearing, the Court is considering a statutory interlocutory application. As noted earlier (at [65]), the THRO Act is modelled upon the Crimes (High Risk Offenders) Act 2006 (which, when originally enacted, was called the Crimes (Serious Sex Offenders) Act 2006). In the second reading speech for the Crimes (Serious Sex Offenders) Bill, the Minister for Police, Mr Scully, in describing the preliminary hearing provisions, said (Hansard, Legislative Assembly, 29 March 2006): "If a prima facie case is made out in the application, the Supreme Court is to make an order for two psychiatrists to examine the offender and report independently. The appointment of two court-appointed psychiatrists is an important aspect of the scheme. It allows for a fair and independent medical opinion to be expressed."
It may be seen that the preliminary hearing process was said in 2006 to involve the application of a "prima facie case" test to determine whether the matter was to proceed beyond the preliminary hearing.
The Court of Appeal (Mason P, Santow and Tobias JJA) referred in Attorney General for NSW v Tillman [2007] NSWCA 119 at [27]-[28] to the preliminary hearing provisions of the Crimes (Serious Sex Offenders) Act 2006: "27 … the Court's function under the respective provisions is to examine the 'supporting documentation' (as to which see ss6(3) and 14(3)) to determine what is 'alleged' in that documentation; and to decide whether it 'would, if proved, justify' the making of the stipulated final order. 28 As regards interim supervision orders, it need only appear that the matters alleged would justify the making of an extended supervision order (s8(1)(b))."
In State of NSW v KAS (Preliminary) [2019] NSWSC 924 at [25]-[26], I said with respect to a preliminary hearing under the Crimes (High Risk Offenders) Act 2006: "25 At a preliminary hearing, it has been said that it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Tillman at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff's case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13]. The use of the term 'prima facie case' seems especially apt given that the Minister used this term in the 2006 second reading speech when describing the process at a preliminary hearing (see [19] above). Reference to the second reading speech is of assistance in identifying the purpose or object of the preliminary hearing provisions: ss.33 and 34 Interpretation Act 1987. 26 The preliminary hearing procedure allows the Court to filter out unmeritorious applications at an early stage and, if interim orders are made, to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision: State of New South Wales v Manners at [9]."
These statements have similar application to the preliminary hearing provisions in the THRO Act, which has as its procedural blueprint what is now the Crimes (High Risk Offenders) Act 2006.
This statutory interlocutory process exists in legislation intended to protect the community. A lower standard applies at a preliminary hearing to determine whether the application should proceed further where the Court will be assisted by expert psychiatric and psychological reports prepared after examination of the Defendant. It is only then that the ultimate test applicable at a final hearing is to be applied, having regard to all evidence adduced at the final hearing by the Plaintiff and the Defendant.
This approach does not overlook the potential adverse consequences for the Defendant if orders are made at the preliminary hearing. Rather, it reflects the statutory two-stage process where a lower hurdle applies at the interlocutory stage.
The Court looks at the allegations and documentation "through the lens of the plaintiff's case" and takes them "at their highest when deciding whether the test articulated in section 27(b) THRO Act has been made good in all the circumstances of the case": State of NSW v Naaman (No. 2) [2018] NSWSC 1329; State of NSW v Elzamtur [2019] NSWSC 186 at [4].
In undertaking the assessment at the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation: State of NSW v Sturgeon at [6].
It is necessary for the Plaintiff to allege certain facts which, if proved, would lead to a conclusion that would justify the making of an ESO: State of NSW v Elomar (No. 2) [2018] NSWSC 1034 at [7]-[10].
Section 27(b) THRO Act requires attention to be given to "the matters alleged in the supporting documentation". A "matter alleged" should have some proper foundation and could not include matters of rumour, possibilities unfounded in fact or wholly unsupported speculation: State of NSW v Alam [2020] NSWSC 295 at [159].

The Defendant

The Defendant is 37 years old. He has a lengthy criminal history involving a range of offences, although no terrorism-related offences. At the time of the preliminary hearing, the Defendant was subject to parole, serving the unexpired portion of a sentence imposed at Liverpool Local Court on 7 March 2019 for the index offence of not stopping a vehicle during police pursuit contrary to s.51B(1) Crimes Act 1900, an offence punishable by a maximum penalty of three years' imprisonment if dealt with on indictment. This constitutes a "NSW indictable offence" for the purpose of s.4 THRO Act. The Defendant was also sentenced at the same time for other offences including larceny of a motor vehicle, assault police and resist arrest. He was sentenced to a total term of imprisonment for 17 months with a 12-month non-parole period.
The Defendant was released to statutory parole on 17 January 2020 and, as already noted, his total sentence was to expire on 17 June 2020.
On 25 and 26 March 2020, the Defendant was arrested and charged with fraud offences and a charge of participating in a criminal group. These matters were listed for mention at the Sutherland Local Court on 30 June 2020. He is subject to bail for one of the fraud offences under s.192E(1)(a) Crimes Act 1900.
The sentence for the index offence was made partially concurrent with a sentence imposed for intimidation with intent to cause fear of physical and mental harm contrary to s.13 Crimes (Domestic and Personal Violence) Act 2007 for which the Defendant was sentenced on 21 May 2017 to a total term of imprisonment for two years to date from 21 May 2017 with a non-parole period of 13 months expiring on 20 June 2018.
Following the Defendant's release on parole on 20 June 2018, he was the subject of a parole breach report in January 2019 which recommended revocation of parole for non-compliance with conditions, including not obeying directions and not ceasing drug use. The State Parole Authority revoked the Defendant's parole on 17 January 2019 and a warrant was issued for his return to custody. The Defendant was arrested and charged with the index offence in January 2019 and returned to custody.
In summary, the Defendant entered custody on 21 May 2017 and was released into the community on parole on 20 June 2018, before returning to custody upon revocation of his parole on 18 January 2019 with his further and most recent release to the community on parole occurring on 17 January 2020.

The Competing Positions of the Plaintiff and the Defendant at the Preliminary Hearing The Plaintiff's Position

The Plaintiff submitted that the Defendant was a "convicted NSW terrorism activity offender" falling within s.10 THRO Act. The Plaintiff submitted that the Defendant has previously made a statement (or has previously carried out activity) advocating support for any terrorist act or violent extremism: s.10(1)(c)(i) THRO Act. In this respect, the Plaintiff relied on the extended definition for the purpose of s.10(1)(c) as contained in s.10(1A)(a)(ii) THRO Act, namely using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism.
The Plaintiff submitted that the Defendant has engaged in activity of this type in that he has previously posted a publicly accessible link on his Facebook page (on 5 February 2020) to a martial Islamic Nasheed described as "Heed the call - new Nasheed from Islamic State's Ajnad Media" which had previously been released by Islamic State on its media channel and which meant "Heed the call of Jihad". The Plaintiff submitted that this satisfies the relevant eligibility requirement of displaying images or symbols associated with an organisation (Islamic State) which supports terrorist acts or violent extremism. Professor Barton explained the term "Nasheed" as an Arabic chant often with romantic martial themes about brothers-in-arms (Barton report, paragraph 12).
The Plaintiff submitted that the posting on 5 February 2020 did not sit in isolation and should be considered together with other manifestations of the Defendant's interests in and identification with violent extremism. In this respect, the Plaintiff pointed to the following matters emerging from the evidence: 1. in November 2014, a search of the Defendant's cell found a diary with a list of names including that of Faheem Lodhi, an Australian convicted of conspiring to commit a terrorist act; 2. the Defendant posted links to other Nasheeds to Facebook in March 2017 with the religious content of the Nasheeds appealing to extremists - even if they were not necessarily indicative of violent extremism on their face, they were accompanied by icons which Professor Barton identified as reflecting Jihadi iconography; 3. in posts in December 2018, after posting a link to a news story about the brother of terrorist Mohamed Elomar, the Defendant engaged with another person asking him whether his definition of terrorism included Australian or American planes dropping bombs in populated areas killing families; 4. on 2 April 2019, the Defendant was recorded by lawfully installed surveillance device watching extremist Jihadi propaganda videos, assessed as likely to be pro-Islamic State or pro-Jabhat al-Nusra, both prescribed terrorist organisations, via a USB on a television in his prison cell, with comments made by the Defendant to his cell mate indicating general approval for the extremist content of the videos; 5. whilst in custody in July 2019, the Defendant sent a letter to Tuki Lawrence, a violent extremism sympathiser; 6. following his release from custody in January 2020, the Defendant continued to post religious memes including a reference to the Islamic Brotherhood and a comment critical of "Jewish dogs" and posted references to "kafirs" (unbelievers) which Professor Barton considered displayed a leaning towards extremism; 7. on 28 January 2020, the Defendant engaged in debate about the origin and spread of Islam identifying it as "spreading through the sword jihad as well as hearts of men through the sword the people came under the rule of Muslims and through the Shariah and the Islamic state growing and fighting jihad eradicating disbelief"; and 8. on 23 March 2020, the Defendant performed searches on a phone in his possession including a Google search of "Islamic State videos 2019" and visited videos including "the Collapse of the Caliphate", "ISIS releases videos of fighters in Baghuz as war reached final days" and "Islamic State prepares resurgence".
The Plaintiff relied upon the reports of Dr Eagle and Professor Barton with respect to these events and their opinions expressed by reference to this material. The Plaintiff submitted that the Court should be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It was submitted that the Defendant has recently displayed an interest in and admiration for violent extremism, specifically associated with Islamic State, which has advanced to publicly advocating support by way of posting the link to the "Heed the call" Islamic State Nasheed in February 2020. It was submitted that a proper basis had been demonstrated for making the orders sought by the Plaintiff at the preliminary hearing.
In the Plaintiff's submissions in reply dated 10 June 2020, reliance was placed as well upon what was said to be evidence of association for the purpose of s.10(1)(c)(ii) THRO Act concerning the Defendant's alleged association with Ahmad Naizmand, Tuki Lawrence and Mohamed Elomar. By email dated 15 June 2020, the Plaintiff's solicitor indicated that the Defendant's alleged association with Ahmad Naizmand was no longer relied upon for the purposes of s.10(1)(c)(ii) THRO Act. The Defendant's Position
The Defendant's primary contention was that the Defendant was not a "convicted NSW terrorism activity offender" under s.10 THRO Act and that the Court did not have power to make the orders sought in this respect. It was submitted that the Defendant had not previously made a statement (or previously carried out any activity) advocating support for any terrorist act for violent extremism.
Should the Court not accept that submission and find that the Defendant was a "convicted NSW terrorism activity offender", the Defendant submitted that the Court would not be satisfied that the matters alleged in the supporting documentation would, if proved, justify making an ISO: s.24(5) THRO Act.
Finally, if the Court determined that an ISO ought be made, the Defendant submitted that a number of proposed conditions of the ISO should not be made for various reasons.
As part of the submission that the requirements of s.10 were not made out in this case, the Defendant advanced a constitutional argument to which reference will be made later in this judgment.
In support of the submission that the Plaintiff had not established that the Defendant was a "convicted NSW terrorism activity offender", it was submitted for the Defendant that the alleged conduct surrounding the "Heed the call" Facebook posting did not fall within the deeming provision in s.10(1A)(a)(ii) THRO Act and thus did not establish that the Defendant had made a statement advocating support for any terrorist act or violent extremism within s.10(1)(c)(i) of the Act. It was submitted that the presence of a link posted on the Defendant's Facebook account did not establish that he had posted the link. It was submitted further that the text appearing in the posting did not involve the Defendant using or displaying images or symbols. Rather, the Defendant posted a link to a website containing an image used by a third party so that, it was submitted, s.10(1A)(a)(ii) THRO Act did not apply to him.
Submissions were made by reference to the affidavit of Jonathan Wilcox affirmed 5 June 2020 concerning the steps involved in posting an item on Facebook.
Next, it was submitted that, even if the Defendant had used or displayed images or symbols, there was no evidence that the image or symbol was associated with Islamic State. It was submitted that there was no evidence concerning what the image which appears on the Defendant's Facebook page actually represents. Although Professor Barton expressed the opinion that the "Heed the call" Nasheed had links to Islamic State, it was submitted that he did not comment upon the meaning or associations of the image or symbol which appeared on the Defendant's Facebook page.
It was submitted that, on its proper construction, s.10(1A)(a)(ii) THRO Act did not apply in the circumstances because that provision did not apply to an activity which is not, reasonably construed, an activity advocating support for any terrorist act or violent extremism. It was submitted that the graphic on the Defendant's Facebook page contained a link to a blog by an Islamic State expert. It was argued that the posting by the Defendant did not involve endorsement of the Nasheed, but rather placing it in its political context and explaining why Islamic State was employing it. It was submitted for the Defendant that it could not reasonably be said that using the image to link to this blog involved advocacy in support of a terrorist act or for violent extremism.
In the course of submissions concerning s.10(1A)(a)(ii) THRO Act, it was submitted for the Defendant that it could not have been intended that a journalist writing a critical article about Islamic State, who used a symbol associated with Islamic State in the course of that article, would be captured by the provision. The Defendant submitted that it should be concluded that s.10(1A)(a)(ii) THRO Act refers to a use or display of images or symbols associated with a person, group of persons or organisation or an ideology that supports terrorist acts or violent extremism in a context where the use or display could reasonably be construed to be advocating support for any terrorist act or violent extremism.
If the Court did not accept that submission, the Defendant contended that s.10(1A)(a)(ii) THRO Act should be read down so as not to infringe the implied freedom of political communication and should be construed so as not to apply where symbols or images are used or displayed for the purpose of communications on governmental or political matters. I will return to the constitutional argument (at [132] and following) after first considering the submissions raised up to that point.

Has the Plaintiff Established that the Defendant is a "convicted NSW terrorism activity offender"? The "Heed the call" Posting

The Plaintiff submitted that the Defendant falls within s.10(1)(c)(i) taken with s.10(1A)(ii) by reference, in particular, to evidence concerning the Defendant's posting of a link on Facebook in February 2020 to the Islamic State Nasheed "Heed the call" which is said to be a public display of an image or symbol associated with a group of persons, ideology or organisation (Islamic State) that support terrorism or violent extremism. Islamic State is currently listed as a prescribed terrorist organisation: Criminal Code (Terrorist Organisation - Islamic State) Regulations 2017 (Cth).
The evidence demonstrates that the Defendant posted the link in February 2020. Reference by the Defendant to an Islamic State Nasheed is significant and probative concerning the s.10(1)(c)(i) aspect of the application.
In considering the "Heed the call" posting by the Defendant, it is appropriate to keep in mind that there is nothing in the evidence that points to the Defendant exercising a journalistic function nor, as was accepted by senior counsel for the Defendant, was there any suggestion in the evidence that the Defendant, at relevant times, had an academic interest and was undertaking studies into Islam or radical Islam (T28, 11 June 2020). This bears upon the Defendant's motive for posting the "Heed the call" item on his Facebook page.
Professor Barton examined the "Heed the call" posting on Facebook. He stated that the Nasheed "Heed the call" is a Nasheed with links to Islamic State as seen by the fact it was released by Ajnad Media, the Islamic State media channel (Barton report, paragraph 12.4). Later, Professor Barton stated that "Heed the call" refers explicitly to heeding the call of jihad, in the sense of violent, offensive action such as that undertaken by Islamic State in Syria and Iraq (Barton report, paragraph 15.2).
I am satisfied that the Defendant posted the words and image which make up the "Heed the call" posting in February 2020. I am satisfied that the Defendant, by the words and image used, has displayed an image or symbol associated with Islamic State, an organisation that supports terrorist acts and violent extremism: s.10(1A)(a)(ii) THRO Act. In this way, the Defendant has made a statement advocating support for a terrorist act or violent extremism: s.10(1)(c)(i) THRO Act.
Although this posting is significant on its own, it should be considered in conjunction with other evidence, including other postings and electronic communications made by the Defendant which are in evidence. I will return to this topic shortly (at [159] and following).
Having reached this point, it is appropriate to turn to the constitutional issue. The Constitutional Issue
The Defendant's s.78B Notice dated 2 June 2020 gave notice to the Attorneys General of the Commonwealth and all States and Territories with regard to a constitutional issue arising from the THRO Act. No Attorney General appeared to make submissions at the preliminary hearing. As noted earlier, Mr Robertson of counsel made submissions on the constitutional issue on behalf of the Plaintiff.
The s.78B Notice identified the constitutional issue arising for consideration at the present interlocutory hearing and (if the matter proceeded to a final hearing) at any final hearing in the following way: "Whether the Act or alternatively section 10(1A)(a)(ii) of the Act should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters or, if it cannot be read down, whether section 10(1A)(a)(ii) is invalid (Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520)."
Detailed written submissions were made on the constitutional issue which were supplemented by oral submissions. It is not necessary to repeat those submission in this judgment.
The Court considered these submissions in the context of an interlocutory hearing which required an urgent determination. Section 75B(5) Judiciary Act 1903 (Cth) recognises the capacity of a court, where a constitutional issue is raised, to hear and determine proceedings where urgent interlocutory relief is sought where the Court thinks it necessary in the interests of justice to do so.
This reflects the temporary nature of an interlocutory determination where, as in this case, there will be a capacity for the parties to debate the constitutional issue at a final hearing where the prospect of final orders being made increases the importance of the issue to the parties.
This is not to say that the interests of the Defendant, against whom an ISO may be made, are to be put to one side. Rather, the approach which I will take, in dealing with this issue briefly, reflects the temporary and provisional nature of what is said at this point on the constitutional issue.
I will express my view succinctly on the constitutional issue whilst being aware that the issue may be revisited at any final hearing under the THRO Act.
The implied freedom of communication about government or political matters is an incident of the system of representative and responsible government in Australia as prescribed by the Constitution: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 ("Lange") at 559.
The implied freedom of political communication is not a personal right of free speech. It is a restriction on legislative power which arises as a necessary implication from provisions of the Constitution and, as such, extends only so far as is necessary to preserve and protect the system of representative and responsible government mandated by the Constitution: Comcare v Banerji (2019) 93 ALJR 900; [2019] HCA 23 at [20] (Kiefel CJ, Bell, Keane and Nettle JJ).
The current test for whether the implied freedom is engaged is a three-limbed test as developed in Lange at 567-568; McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 23 ("McCloy") at [2] and Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43 ("Brown") at [104]. Reading these cases together, the test may be stated as follows: 1. Does the law effectively burden the freedom in its terms, operation or effect? 2. If "yes" to Question (1), is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 3. If "yes" to Question (2), is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
If the answer to the first question is "yes", and if the answer to either the second and third questions is "no", then the law is invalid.
A tool of analysis accepted by the High Court to be used in the third stage of this test is a structured proportionality analysis: McCloy at [2] (French CJ, Kiefel, Bell and Keane JJ); Brown at [159] (Gageler J), 417 [280] (Nettle J) and 476-477 [473] (Gordon J); Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11 at 470-471 [70]-[74] (Kiefel CJ, Bell and Keane JJ) and [266] (Nettle J).
This proportionality analysis has three stages at which the inquiry is made as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses (McCloy at [2]): "suitable - as having a rational connection to the purpose of the provision; necessary - in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom; adequate in the balance - a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom. If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be 'no' and the measure will exceed the implied limitation on executive power."
Both parties adopted this tool of analysis for the third stage of the test. I will also adopt this tool of analysis.
The issues to be considered are: 1. To what extent does s.10(1A)(a)(ii) THRO Act burden the implied freedom in its terms, operation or effect? 2. Is the burden (if any) on the implied freedom imposed by s.10(1A)(a)(ii) THRO Act necessary? 3. Is the burden (if any) on the implied freedom imposed by s.10(1A)(a)(ii) THRO Act adequate in its balance?
The Defendant submitted that the provision should either be read down or be deemed invalid: s.31 Interpretation Act 1987; s.15 THRO Act.
Counsel for the Plaintiff submitted that it is possible that there is some practical burden on political communication, but only one that is slight and indirect. It was submitted that the extent of such a burden is not enough to satisfy the first limb of the test, citing McCloy at [93] (French CJ, Kiefel, Bell and Keane JJ).
Counsel for the Defendant submitted that even a slight burden is sufficient to satisfy the first limb of the test, citing Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 at [118] (Hayne J); Tajjour v New South Wales (2014) 254 CLR 508; [2014] HCA 35 at [106] (Crennan, Kiefel and Bell JJ).
The objects of the THRO Act (including s.10(1A)) are to ensure the safety and protection of the community and to encourage eligible offenders to undertake rehabilitation. Neither the THRO Act nor the extrinsic materials indicate that the legislature intended to include in the scope of s.10(10)(a)(ii) communications (including using or displaying images or symbols) that are not intended to be harmful to the wider community and that, in particular in relation to the THRO Act, involve protest or dissent.
I accept the Plaintiff's submissions that, at most, s.10(1A)(ii) THRO Act imposes a slight and indirect burden on political communication: McCloy at [93]. It is theoretically conceivable that the provisions could impose a minor practical burden on political communication.
It is important to keep in mind, however, that what is to be assessed is "the law's effect on political communication as a whole": Comcare v Banerji at [20]. Even if a law significantly restricts the ability of an individual or a group of persons to engage in political communication, the law will not infringe the implied freedom of political communication unless it has a material unjustified effect on political communication as a whole: Comcare v Banerji at [20].
On its proper construction, I am not persuaded that s.10(1A)(a)(ii) THRO Act burdens implied freedom. The answer to the first question (at 141] in the test is "no", rendering it unnecessary to consider and determine the second and third questions.
If I was wrong in that conclusion and it was necessary to move to the question of compatibility, I would be satisfied that the purpose of s.10(1A)(a)(ii) THRO Act is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. This conclusion is supported by statements made by the Attorney General in his 2018 second reading speech (see [86] above). The risk assessment process under the THRO Act, of which s.10(1A)(a)(ii) forms part, is a legitimate end in legislation designed to protect the community. Accordingly, I would conclude (in answer to the second question at 141] that any burden was necessary.
If the third question of proportionality arose (at 141], I would be satisfied that s.10(1A)(a)(ii) THRO Act is reasonably appropriate and adapted to advance a legitimate object.
Section 10(1A)(a)(ii) THRO Act does not offend the implied freedom of communication on political and governmental issues.
Section 10(1A)(a)(ii) THRO Act is constitutionally valid and need not be read down.
I am satisfied that the Plaintiff has demonstrated that the Defendant falls within the definition of a "convicted NSW terrorism activity offender" for the purpose of s.10 THRO Act.

Has the Plaintiff Demonstrated that an ISO and an Order for Examination of the Defendant Should be Made in this Case?

Having reached a conclusion favourable to the Plaintiff with respect to the second issue (at 88], I turn to consider the remaining issues as to whether an ISO should be made together with an order for examination of the Defendant (at 88 and (d]).
I have mentioned earlier the Plaintiff's submissions which invited an assessment of the Defendant's acts and words at various times in a cumulative and non-piecemeal fashion. That approach is correct in assessing the evidence adduced at the preliminary hearing under the THRO Act.
It is important not to consider the different pieces of evidence relied upon by the Plaintiff concerning the acts and thought processes of the Defendant in a piecemeal fashion. Like a circumstantial case in a criminal trial, it is necessary to consider the totality of the evidence concerning acts or statements of the Defendant which may shed light upon his thought processes in areas relevant to risk assessment for the purpose of the THRO Act: The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46], [48]; The Queen v Baden-Clay (2016) 258 CLR 308: [2016] HCA 35 at [47].
Other matters identified in the evidence should be taken into account, as part of the total mosaic of evidence, in determining what inferences should be drawn from the evidence for the purpose of the preliminary hearing. An issue for consideration is not only what the Defendant was doing at different times, but also why he was doing these things. What did his actions indicate concerning his state of mind in the areas of terrorism and violent extremism? This goes to the heart of the process of risk assessment required under the THRO Act.
This is not a case where the Plaintiff's application is based upon statements or acts of the Defendant in the distant past. As it happens, the Defendant has said things over a number of years which illuminate an understanding of his recent words and acts. All of this is important for the purposes of the risk assessment required under the THRO Act.
In April 2004, the Defendant was spoken to by police and he became aggressive and abusive towards the police. He said, amongst other things, "I'm going to join al-Qaeda so I can bomb all you cops". The Defendant was 20 years of age at the time. Although this is an incident well removed in time from the Defendant's activities in 2019 and 2020, it is capable of shedding light upon the Defendant's thought processes and a willingness to identify with an extremist cause at that time.
When the Defendant was taken to hospital for possible scheduling on 22 May 2017 after he had threatened his mother with a knife, he was described by a police officer as threatening to harm police and "referencing Curtis Chang [sic] saying he will kill police" (Exhibit MC-1, Tab 106). Curtis Cheng was employed as an accountant by the New South Wales Police Force and was shot dead in a terrorist act at Parramatta in October 2015. Allowance should be made concerning this incident for the Defendant's apparent mental health issues at that time.
In December 2018, the Defendant defended the reputation of Ahmed Elomar, the brother of Mohamed Elomar, on Facebook against a suggestion that he was also a terrorist. The Defendant's post stated "…wjats ur definiton of terrirost do u call australian or american jeta. dropping bombs from jets in. populated areas killing familiea women children are they terrirists [sic]" (affidavit, H Kadlec, 8 February 2019, paragraph 20).
In 2018, the Defendant's Facebook page included as a featured photograph an image of the Shahada (the Islamic statement of faith) with crossed assault rifles, which Professor Barton identified as reflecting jihadi iconography (Barton report, paragraph 11).
Other statements or acts of the Defendant as revealed in the evidence (see [112] above) are pertinent to the risk assessment process to be undertaken at the preliminary hearing under the THRO Act.
The helpful report of Professor Barton assists an understanding of the content of the Defendant's postings, searches and videos watched by him together with comments made by the Defendant as revealed in the evidence. In addition, Professor Barton's report provides considerable assistance in understanding the context of the conduct and statements of the Defendant in these respects.
I am satisfied that Professor Barton's report provides assistance to the Court as part of the mandatory considerations to be taken into account under s.25(3)(l) and (m) THRO Act, by reference to the beliefs or commitments of the Defendant and other information that is available as to the likelihood that the Defendant will commit a serious terrorism offence.
The risk assessment report of Dr Eagle also provides considerable assistance to the Court as a mandatory consideration under s.25(3)(b) THRO Act concerning the likelihood of the Defendant committing a serious terrorism offence.
Dr Eagle acknowledged the limitations upon her assessment arising from her inability to interview the Defendant. That said, Dr Eagle's report provides strong support for the Plaintiff's application at the preliminary hearing. It is appropriate to refer to parts of Dr Eagle's report where opinions were expressed after a detailed examination of the supporting documentation and the report of Professor Barton, with all of that material being in evidence at the preliminary hearing.
Dr Eagle undertook an assessment of the Defendant by reference to the Violent Extremism Risk Assessment - Version 2 Revised ("VERA-2R") Scale and concluded that he has demonstrated a number of risk indicators identified as associated with an increased risk of violent extremism on that scale. Whilst addressing the Defendant's commitment to an ideology that justifies violence, Dr Eagle stated (paragraph 216.1.1): "Mr Cheema appears to have an increasing interest in an ideology that supports violent extremism, although it is less clear whether he has an established commitment to that ideology. On the information available, his interest in violent extremism appears to have developed or evolved over the last one to two years possibly in the context of peer influence."
Under a heading "Hostility to national identity", Dr Eagle stated (paragraph 216.1.6): "Mr Cheema appears to engage in laughter and make comments indicating enjoyment in response to videos of apparent violent activities in Iraq and Syria from surveillance recordings on 2 April 2019 [17:39-17:43]. He is heard laughing in the context of comments such as that he would 'pull up in front of the copper,' and imitating gunfire [18:09]. This would suggest a level of callousness or lack of empathy for those in authority."
Whilst addressing the question whether the Defendant had expressed an intention to commit acts of violent extremism, Dr Eagle observed (at paragraph 2.6.2.4) that it was difficult to assess from comments made by the Defendant to his cell mate concerning a desire to access weapons whether this "may be simply grandstanding behaviour between two cell mates or reflecting a more genuine desire to access weapons for a specific purpose" in the absence of a clinical assessment.
Having addressed a range of factors relevant to the assessment using the VERA-2R Scale, Dr Eagle concluded (paragraph 217): "In summary, Mr Cheema has a number of risk indicators that would suggest an increased risk that he might engage in acts of violent extremism. The most significant risk indicators would appear to be his increasing interest and potential commitment to an ideology that justifies violence; an increasing sense of vicarious group grievances in response to perceived injustice to Muslim people by Western governments such as America and Australia; some hostility to his national identity as an Australian; a lack of empathy for those who are outside his own group; personal contact with those associated with violent extremism; a susceptibility to influence, control or indoctrination; a violent criminal history indicating a capacity for violence; and a strong motivation for camaraderie and group belonging."
In concluding a risk formulation concerning the Defendant, Dr Eagle stated (paragraph 233): "Mr Cheema has the capacity for severe violence involving weapons, including instrumental violence and has a pre-existing antipathy towards authority figures that is compounded by his ongoing cycle of offending and re-incarceration. Combined with his apparent increasing association with violent extremists and endorsement of violent extremist ideologies, he appears at an elevated risk of engaging in future acts of violence that may be justified on ideological grounds."
According to Dr Eagle, the Defendant does not appear to display signs and symptoms of a major mental illness at this stage, although he is at an increasing risk of developing a psychotic illness with the persistent use of stimulant substances such as methamphetamines (paragraph 235.1).
Dr Eagle's report provides a careful and balanced analysis and assessment concerning the Defendant, which culminated in the expression of the following opinion concerning the range of risk the Defendant poses to the community by way of general offending, violent offending and extremist violent offending (paragraph 235.4): "I have conducted a risk assessment utilising the VERA 2R and the TRAP 18 to help determine Mr Cheema's risk of engaging in acts of violent extremism either as part of a group or as a lone actor. Mr Cheema appears to have a number of risk indicators, subject to the limitations of that assessment identified above, that are associated with an increased risk of engaging in acts of violent extremism. The most significant risk indicators, based on the VERA 2R would appear to be his increasing interest and potential commitment to an ideology that justifies violence; an increasing sense of vicarious group grievances in response to perceived injustice to Muslim people by Western governments such as America and Australia; some hostility to his national identity as an Australian; a lack of empathy for those who are outside his own group; personal contact with those associated with violent extremism; a susceptibility to influence, control or indoctrination; a violent criminal history indicating a capacity for violence; and a strong motivation for camaraderie and group belonging. Consistent with the VERA 2R, Mr Cheema also appears to have a number of proximal warning behaviours and distal characteristics that have been associated with acts of violent extremism by the TRAP 18 including the proximal indicators of fixation (increasing pathological preoccupation with a cause, associated with a deterioration in function); identification (identifies with previous attackers and as an agent to advance a cause); and possible leakage (communication of a potential target for attack) in addition to distal characteristics of moral outrage; framed by an ideology; dependence on the virtual community; thwarting of occupational goals; changes in thinking and emotions; failure of pair bonding and a background of criminal violence."
Dr Eagle expressed the following conclusion (paragraph 235.4) (my emphasis): "Overall, and subject to the limitations identified, I am of the view that the identified risk indicators suggest that Mr Cheema may be at a substantially elevated risk of engaging in acts of violent extremism. I have also conducted a risk assessment utilising the HCR 20 version 3 for the purpose of assessing his risk of violent reoffending. Mr Cheema has a high loading of historical, clinical and risk management factors associated with future violent offending. He would be considered in a category of offenders at a substantially elevated risk of violent reoffending."
In response to a request for her opinion as to treatment which would mitigate any risk the Defendant posed of committing a serious terrorism offence, Dr Eagle said (paragraph 235.7) (my emphasis): "Mr Cheema would benefit from a psychological assessment with a view to ongoing psychological therapy to address psychological vulnerabilities such as emotional instability, low self esteem, interpersonal deficits and poor coping skills. He would also benefit from more assertive drug and alcohol rehabilitation including opioid substitution therapy and residential rehabilitation for a period of at least 9 to 12 months to address his substance use. If Mr Cheema can address his psychological vulnerabilities and substance use disorder, enabling him to develop a prosocial lifestyle, secure a meaningful vocation and develop stable relationships, he is likely to be less susceptible to the influence of pro criminal peer groups and the indoctrination of violent extremists."
I am satisfied that the evidence contained in the supporting documentation relied upon by the Plaintiff provides an objective foundation for the opinions expressed by Professor Barton, and the further opinions expressed by Dr Eagle in her risk assessment report.
I have had regard to the evidence and the submissions made by the Plaintiff and the Defendant as to whether the requirements of ss.24(5) and 27(b) THRO Act have been established so as to warrant orders that the Defendant undertake psychiatric and psychological assessment together with an order that he be subject to an ISO.
I have had regard to the matters specified in s.25(3) as well as the requirement in s.25(2) THRO Act that in determining whether or not to make an ISO, the safety of the community must be the paramount consideration of the Court.
I have applied the principles summarised earlier in this judgment (at [91]-[103]).
I am satisfied that the evidence demonstrates, to the necessary standard at the preliminary hearing, the matters alleged in the supporting documentation would, if proved, justify the making of an ESO so that an order for psychiatric and psychological examination is appropriate (s.24(5)) together with an ISO (s.27(b) THRO Act).
It was noted earlier in this judgment 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 (see [84] to [85] above). I have kept in mind, as well, the legislative intention underlying the wide range of conduct included in terrorism offences, being the protection of the community.
The enactment of s.10(1A) THRO Act in 2018 may be seen as a further extension by the legislature undertaken with the express intention to protect the community (see [86] above). The concepts contained in s.10(1) and (1A) are to be adopted and applied in the risk assessment process to be undertaken under the THRO Act, with the primary object of providing supervision of persons who pose an unacceptable risk of committing a serious terrorism offence so as to ensure the safety and protection of the community: s.3(1) THRO Act.
I agree with the statement of Wilson J in State of NSW v Alam at [129], that it is not necessary for the Court to specify the precise "serious terrorism offence" as part of the Court's risk assessment function under the THRO Act. The risk assessment process is forward-looking: State of NSW v Naaman (No. 2) at [29]. 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".
The evidence indicates repeated occasions where the Defendant has acted or spoken in ways which reflect an interest in, and support for, persons and organisations which have supported and engaged in terrorist acts and violent extremism. As Dr Eagle has observed, the Defendant has demonstrated an increasing level of interest in this respect in recent years in a manner which heightens concern for the risk of further conduct on his part which falls squarely within the protective purpose under the THRO Act.
The evidence of Dr Eagle explains the risk presented by the Defendant and the utility of treatment of the Defendant as a condition of an ESO or ISO to mitigate risk the interests of protection of the community (see [181] above).
I am satisfied that the Plaintiff has demonstrated a proper foundation for the making of the orders sought by way of psychiatric and psychological examination and the fixing of an ISO concerning the Defendant.

Conditions of the ISO

Section 29 THRO Act provides extensively for conditions of an ISO. Section 29 states: "29 Conditions that may be imposed on extended or interim supervision order (1) An extended supervision order or interim supervision order may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender to do any one or more of the following: (a) to permit any enforcement officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, (b) to permit any enforcement officer to access any of the following: (i) a computer or related electronic equipment that is at the offender's residential address or in the possession of the offender, (ii) data held within, or accessible from, the computer or related electronic equipment (including data accessible by means of an electronic identity), (c) to permit any enforcement officer to seize any computer or other object at the offender's residential address or in the possession of the offender for the purpose of enabling it to be forensically examined, (d) to use specified services or facilities, (e) to make periodic reports to an enforcement officer, (f) to notify an enforcement officer of any change in the offender's address, (g) to participate in intervention programs or initiatives, (h) to wear electronic monitoring equipment, (i) to reside at an address approved by an enforcement officer, (j) not to reside in or resort to specified locations or classes of locations, (k) not to associate or make contact with specified persons or classes of persons, (l) not to engage in specified conduct or classes of conduct, (m) not to engage in specified financial, property or business dealings (including not to enter into specified agreements or hold specified interests in connection with such dealings), (n) not to possess or use specified objects or substances, (o) not to engage in specified employment or classes of employment, (p) not to change the offender's name, (q) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, (r) to comply with specified requirements in connection with the offender's access to and use of the internet, (s) to provide any enforcement officer with information about any one or more of the following: (i) a carriage service used, or intended to be used, by the offender (including any telephone number used, or intended to be used, by the offender), (ii) an internet service provider or carriage service provider used, or intended to be used, by the offender, (iii) an internet connection used, or intended to be used, by the offender (including whether the connection is a wireless, broadband, Asymmetric Digital Subscriber Line (ADSL) or dial-up connection), (iv) an electronic identity used, or intended to be used, by the offender, (t) to provide any enforcement officer with requested information in relation to any employment or any financial affairs of the offender. (1A) Unless the Supreme Court orders differently (and without limiting the conditions that the Court may impose under subsection (1)), an extended supervision order or interim supervision order must include conditions requiring the eligible offender: (a) to submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements), and (b) to wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment, and (c) to live at an address approved by an enforcement officer and notify an enforcement officer of any intention to change the offender's address or living arrangements, and (d) not to leave New South Wales except with the approval of the Commissioner of Corrective Services, and (e) to submit to the search of the offender's person and residence and the search and seizure of the offender's vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the offender's control, and (f) to comply with rules or by-laws (or both) of any approved accommodation for the offender, and (g) not to use prohibited drugs, or obtain drugs unlawfully or abuse drugs lawfully obtained, and (h) to submit to drug and alcohol testing, and (i) not to possess or use any of the following: (i) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, (ii) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, (iii) a spear gun, (iv) an explosive substance intended, by the eligible offender, to be used in an explosive device, (v) a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the eligible offender, to be used as a fuse or detonator for an explosive device (as the case may be), and (j) to be available for interview at such times and places as an enforcement officer (or the officer's nominee) may from time to time direct, and (k) to undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an enforcement officer, and (l) not to start on the offender's own initiative any job, volunteer work or educational course without the approval of an enforcement officer, and (m) to obey any reasonable direction by an enforcement officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information), and (n) to permit an enforcement officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, and (o) to notify an enforcement officer of any intention to change the offender's employment if practicable before the change occurs or otherwise at his or her next interview with an enforcement officer, and (p) not to associate (including using third parties) with any person or persons specified by an enforcement officer, whether face to face or by written correspondence or electronic means, and (q) not to change the offender's name or use any other name without notifying an enforcement officer, and (r) not to frequent or visit any place or district specified by an enforcement officer. (2) In this section: carriage service, carriage service provider and internet service provider have the same meanings as in the Telecommunications Act 1997 of the Commonwealth. electronic identity means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service."
A person to whom an ISO applies must comply with the requirements of the order with a breach of the ISO being punishable by imprisonment for five years or a fine of 500 penalty units or both: s.30 THRO Act.
The Court must be satisfied, having regard to the scope, purpose and objects of the THRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [53]-[54].
The question of what were appropriate conditions for an ISO was addressed in writing and orally at the preliminary hearing. In accordance with usual practice, the Plaintiff's Summons specified the proposed conditions which were sought if an ISO was ordered.
The Plaintiff's submissions in reply dated 10 June 2020 addressed (in an attached table) the proposed conditions and the rationale for them (Exhibit C, Tab 4).
Submissions were made for the Defendant by reference to proposed amended conditions (Exhibit 2) and additional written submissions (Exhibit 3) as well as oral submissions on the topic.
I will refer shortly to particular proposed conditions which were in contest and attracted submissions. I have kept in mind s.29 THRO Act with respect to conditions and the need to determine that conditions are appropriate to be ordered at the preliminary hearing as part of an ISO. In this respect, I am conscious that conditions constitute restrictions upon the liberty of the Defendant in various ways and expose him to the prospect of prosecution for a breach of conditions if he is alleged to have not complied with any condition.
The Plaintiff's proposed conditions commenced with definitions of a number of terms which appear in the conditions themselves. No submission was made for the Defendant which challenged the terms of the definitions contained in the document. I am satisfied that the proposed definitions are appropriate and meaningful and assist an understanding of the particular conditions which appear later in the document. Prescribed Conditions Under s.29(1A) THRO Act
Proposed Conditions 1(a)-(r) appear in the Schedule of Proposed Conditions as a category of prescribed conditions under s.29(1A) THRO Act.
Objection was taken to proposed Condition 1(i) which required the Defendant not to possess certain firearms weapons, explosive substances, fuses capable of use with an explosive or a detonator and associated items. It was submitted for the Defendant that the operation of the Firearms Act 1996 and the Weapons Prohibition Act 1998 covered these matters sufficiently with it being noted that the Defendant was subject to a firearms prohibition order. It was submitted for the Defendant that s.6 Explosives Act 2003 already prohibited possession or use of explosive substances or fuses capable of use with an explosive or a detonator so that the condition was not necessary.
It was submitted for the Plaintiff that proposed Condition 1(i) was appropriate given the protective function being undertaken by the Court and that it was not sufficient to rely upon provisions in other statutes which, in some respects, did not extend to the matters covered by this proposed condition.
I was satisfied that proposed Condition 1(i) should be set in the terms sought by the Plaintiff. It appears to be the case that some (but not all) of the matters specified in the proposed condition are referred to in other legislation. However, having regard to the objects of the THRO Act and the risk which is sought to be mitigated by means of an ISO with conditions, the fixing of a condition in these terms is appropriate and will serve the purpose of spelling out clearly to the Defendant particular conduct which is clearly prohibited. This proposed condition was appropriate in the circumstances of the case.
With respect to proposed Condition 1(k) concerning ongoing psychological or psychiatric assessment or counselling of the Defendant, it was submitted for the Defendant that he should not be required to participate in psychological assessment or counselling with any member or Corrective Services NSW or the Terrorist High Risk Offenders Team. It was submitted that the Defendant had been seeing a psychologist for a period and that he should not be required to undertake psychological or psychiatric assessment or counselling with official psychiatrists or psychologists in the nominated categories to which objection was taken.
It was submitted for the Plaintiff that this condition was appropriate and was supported by Dr Eagle's report (paragraph 235.7). The Plaintiff submitted that to place this qualification on Condition 1(k) may lead to the lack of important information concerning risk being available as part of the implementation of the ISO.
I was satisfied that Condition 1(k) should be fixed as sought by the Plaintiff and without the qualification sought by the Defendant. I bear in mind that the condition has been fixed as part of the ISO which will have temporary operation. It is important, however, that information relevant to risk be available to those administering the ISO so that I am not persuaded that the rider sought by the Defendant should be placed on this condition. Additional Conditions Under s.29(1) THRO Act
Proposed Conditions 2 to 41 are sought by the Plaintiff as additional conditions for the purpose of s.29(1) THRO Act.
Objection was taken to proposed Condition 2 which sought that "The defendant must truthfully answer questions from his EO [Enforcement Officer] about where he is, where he is going, who he is with and what he is doing".
The Defendant proposed, in the place of that proposed condition, a condition which stated "If the defendant is asked by his EO about where he is and where he is going, who he is with and what he is doing, he must not provide information in response that he knows to be false".
It was submitted for the Defendant that proposed Condition 2 as sought by the Plaintiff raised concerns with respect to abrogation of the privilege against self-incrimination so that the Defendant's alternative formula was appropriate to guard against that concern.
The Plaintiff submitted that proposed Condition 2 was important to the administration of the ISO and was an appropriate condition in the circumstances of the case. With respect to the submission concerning the privilege against self-incrimination, the Plaintiff relied upon the analysis of Beech-Jones J in State of New South Wales v Baldwin [2019] NSWSC 1882 at [91]-[94].
I was satisfied that proposed Condition 2 should be fixed in the terms sought by the Plaintiff. The condition in those terms is appropriate and necessary for the proper implementation of the ISO given the risk posed by the Defendant. To the extent that an issue was raised concerning the privilege against self-incrimination, I adopt the reasoning of Beech-Jones J in State of New South Wales v Baldwin (a decision confirmed by the Court of Appeal in Baldwin v State of New South Wales [2020] NSWCA 112).
The Defendant proposed an amendment to Condition 4 which concerned the Defendant permitting another person to enter and remain at his approved address. The effect of the Defendant's amendment would be to require the Defendant to notify the Enforcement Officer as soon as practicable after the event if persons stayed at his approved address. It was submitted as well that, as the Defendant was living in his mother's house, the condition may be ambiguous and catch guests of the Defendant's mother who may attend the premises.
The Plaintiff submitted that the condition as sought was clear and applied to the Defendant (and not his mother) and was appropriate in the circumstances of the case.
I was satisfied that proposed Condition 4 as sought by the Plaintiff should be included. It is clear enough, in my view, that the condition relates to the Defendant and not potential guests of his mother. In addition, it is appropriate that the condition state clearly that the Defendant must not permit persons to enter and remain or stay overnight without the prior approval of his Enforcement Officer. The condition is reasonable and appropriate in the circumstances.
The Defendant proposed amendments to Condition 15 which concerns contact by him with persons or organisations advocating support for terrorist acts or contact by him with persons using illegal drugs or alcohol or contact by him with any person held in custody without prior approval of his Enforcement Officer. The amendment proposed by the Defendant was the insertion of references to the Defendant having knowledge or belief with respect to these categories of persons.
The Plaintiff submitted that proposed Condition 15 was appropriate having regard to the evidence, including Dr Eagle's report and that its operation was both clear and necessary in this case.
I included Condition 15 in the form sought by the Plaintiff. In my view, the terms of the condition are clear and it is not unduly onerous or capable of operating unfairly to the Defendant. I bear in mind, as well, that conditions of the ISO are temporary and, if the Court determines at a final hearing to order an ESO, there will be an opportunity for the parties to further address any issue concerning Condition 15 if they wish to do so.
The Defendant proposed an amendment to Condition 17 to insert the word "violent" before the words "extremist ideologies". It was submitted that this was appropriate given the evidence in the case.
The Plaintiff submitted that this qualification should not be made to Condition 17 with reference being made to the report of Professor Barton (paragraphs 3.7-3.8) concerning Hizb ut-Tahir, an organisation which is said to be non-violent, but is linked with extremist ideology and had featured in the Defendant's electronic activities.
I was satisfied that Condition 17 should be fixed as sought by the Plaintiff. The conditions contain a definition of "extremist material" which sheds light upon the operation of Condition 17. Beyond that, the management of the risk posed by the Defendant will be well served by a prohibition upon him engaging in any act or other conduct referred to in Condition 17 that would support or promote extremist ideologies or acts of violence. The qualification sought by the Defendant with respect to Condition 17 is not appropriate and would not serve the purposes of the THRO Act.
The Defendant objected to proposed Condition 18 which prohibited the Defendant from possessing or using certain specified articles, weapons and other items for similar reasons that drew the objection to Condition 1(i).
The Plaintiff submitted that the provisions in other statutes do not cover all the items mentioned in Condition 18 and that it is an appropriate condition in the circumstances of the present case.
I was satisfied that Condition 18 should be included as part of the ISO. The condition sets out clearly the particular items which the Defendant is not to possess or use without the prior approval of the Enforcement Officer so that the Defendant will be aware of the restrictions placed upon him in this respect. I do not think that the fact that some of these items are referred to in parts of other statutes is a reason for not including Condition 18 as an express statement of a restriction on the Defendant's conduct which is appropriate in the circumstances of the case and serves the objects of the THRO Act.
The Defendant proposed amendments to Condition 22 including the insertion of the word "violent" before the words "extremist material" relying upon submissions made with respect to Condition 17.
For reasons expressed with respect to Condition 17, I did not insert the word "violent" before the words "extremist material" as sought by the Defendant. In this regard, I once again note the definition of "extremist material" in the conditions with the terms of Condition 22(a) being clear and necessary in the circumstances of the case.
The Defendant sought an amendment to Condition 22(b) so that the reference to a direction by an Enforcement Officer ought be in writing. During the course of submissions, counsel for the Plaintiff conceded that this alteration was appropriate (T63.1, 11 June 2020). That alteration was included in Condition 22(b).
However, I did not include the further amendment to Condition 22(b) as sought by the Defendant. I was satisfied that Condition 22(b) is clear and reasonable on its face.
The Defendant proposed an amendment to Condition 28 concerning the use by him of any coded or encrypted messaging application or service. The Plaintiff sought a condition which states that "The defendant must not use any coded or encrypted messaging application or service". The Defendant submitted that the appropriate condition would state "The defendant must not use any messaging application or service that he knows or believes uses coding or encryption".
I was satisfied that the condition as sought by the Plaintiff should be set. Where the evidence reveals recent and regular use by the Defendant of electronic services concerning extremist organisations and subject matters, there ought be a clear prohibition upon the use of any coded or encrypted messaging application or service with the onus effectively being upon the Defendant not to use an application or service which is so described. This condition is clear and is not unreasonably onerous in the circumstances of the case.
The Defendant proposed an amendment to Condition 38 which raised similar issues as submitted concerning Condition 1(k) (see [205]-[207] above). For reasons similar to those applied dealing with Condition 1(k), I did not amend the condition in the manner sought by the Defendant. I am satisfied that Condition 38 is appropriate in the circumstances of the case.
The Defendant sought an amendment to Condition 40 by confining the need to notify the Enforcement Officer about a change of medication to prescribed psychiatric medication only. I did not consider that this amendment was appropriate. The evidence revealed that the Defendant has been on medication for various conditions and treatment has extended to drug and alcohol use and abuse as well as other conditions. Condition 40 was made in the terms in which it was sought by the Plaintiff.
The Defendant sought an amendment to the second part of Condition 40, in a manner which confined the material that the Defendant must agree to being the subject of information sharing as between health care practitioners.
The Plaintiff opposed the modification of the condition sought by the Defendant and submitted that the provision of material was necessary to address risk factors revealed in the evidence.
I was satisfied that Condition 40 was appropriate in the circumstances of the case. An important part of implementation of the ISO is the sharing of information by the Defendant's treatment and service providers and health care practitioners with each other and with his Enforcement Officer. This is an important feature in managing areas of risk which are foundational to the making of the ISO itself. Once again, if the Court is considering the making of an ESO at a final hearing, then it would be a matter for the Judge presiding at that hearing to consider whether any variation of the condition was appropriate if the parties sought to make submissions on that issue.
In conclusion, I was satisfied that the conditions included in the schedule to the orders made on 15 June 2020 were appropriate in the circumstances of the case and should be made having regard to factors bearing upon the exercise of the condition-ordering power under the THRO Act.

Conclusion

It was for the reasons contained in this judgment that I made orders on 15 June 2020 as specified at [19] above.
The conditions imposed as part of the ISO are contained in Schedule A to this judgment.

State of NSW v Cheema (Preliminary) - Schedule A - 9 July 2020 (66519, docx) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2020

Criminal Code (Terrorist Organisation - Islamic State) Regulations 2017(Cth)

(2019) 100 NSWLR 218

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