State of New South Wales v Church

Issues

1. The substantial issue at the final hearing is whether I am satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under the supervision of an ESO: s 20(d). The defendant argues that I cannot be satisfied that this threshold requirement has been met, contrary to the State's argument. A further issue is whether, in the event I am satisfied as to s 20(d), I should otherwise exercise my discretion under s 25(1)(b) to refuse to make an ESO. Finally, in the event that I make the order sought, the parties dispute the appropriate conditions necessary to manage Mr Church's risk under s 29, bearing in mind, inter alia, s 29(1A). Many of the conditions have been agreed (MFI "1").
2. There is no real dispute that the other statutory preconditions to the exercise of the power to make an ESO, as set out in s 20(a)-(c), have been made out. These are that: Mr Church was in custody serving a sentence of imprisonment, albeit on parole, when the application was filed; the application for an ESO was made in accordance with Part 2 of the Act; and, even if agreed only somewhat reluctantly, Mr Church is, for the purposes of these proceedings, a "convicted NSW terrorism activity offender".
3. I propose to briefly outline the reasons why those preconditions are satisfied; particularly why Mr Church satisfies the definition of a "NSW terrorism activity offender" within the meaning of s 20(c)(iii) as defined by s 10.

Statutory preconditions

1. First, as previously stated, Mr Church is currently subject to an extension of the previous ISO made by me on the first day of the final hearing, 10 June 2021. When the application was filed, he was on parole for the index offending. The police pursuit offences are serious indictable offences. The ISO expires on 19 June 2021 in accordance with s 28(7). Secondly, I am satisfied that the application for the order has been made in accordance with Part 2 of the Act. Thirdly, when the application was brought Mr Church was in the last twelve months of his sentence, and it was supported by documentation addressing the mandatory requirements of s 25(3), and a risk assessment report as referred to in s 23(3)(b): s 23.
2. I am also satisfied on the balance of probabilities that Mr Church is a NSW terrorism activity offender under the Act. I dealt with this issue at [11]-[27] of my preliminary judgment. The State relied upon s 10(1)(c) and the amplification of that provision by sub-s (1A). Section 10(1)(c) is in the following terms: 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.
3. As to s 10(1)(c)(i), the State adduced evidence of statements made on three social media accounts owned and operated by Mr Church. The emphasis of the State's case is on two of the three accounts. These social media accounts were not under the name of Mr Church. Rather, there is evidence I find compelling that Mr Church had adopted a nom de plume, eg Shahid al Mujaahid meaning jihadist martyr, in relation to them. Indeed, since I heard the evidence at the preliminary hearing Mr Church has admitted in his interview with one of the two court appointed experts, Dr Eagle, to owning one of the accounts (Dr Eagle's Report at [52]). When asked about the second account Mr Church said he could not recall whether he had ever posted on that account, however he did not deny it was his (Dr Eagle's Report at [55]). Without canvassing the statements made by the accounts now, I am satisfied that the statements contained "images" associated with "violent extremism" within the meaning of s 10(1A)(a)(ii).
4. Section 10(1A) is in the following terms: (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.
5. Were I not satisfied that Mr Church had previously made statements advocating support for violent extremism in accordance with s 10(1)(c) as that concept is extended by the provisions of s 10(1A), in particular sub-paragraph (a)(ii), I would have been satisfied for the reasons appearing below that Mr Church had, at least previously, a personal association or affiliation with persons advocating support for violent extremism; again within the extended meaning provided by s 10(1A)(b).
6. My reasons for finding on the balance of probabilities that Mr Church had, at least previously, made statements advocating support for violent extremism are that I accept the matters set out at [12] to [27] of my preliminary judgment have been established on the balance of probabilities. In coming to this conclusion, I acknowledge as I did in my preliminary judgment, the force of the submissions made by Mr Stratton SC, who appeared with Ms T Hennessy and Mr J Wilcox for Mr Church, that most of the posts for which Mr Church was responsible were benign, and those of concern did not directly or overtly advocate support for violent extremism by Mr Church personally. As the expert evidence of Professor Barton and Dr Shanahan separately demonstrated, a clear understanding of the significance of the images of concern is garnered only with the assistance of deep learning and scholarship like theirs. It is doubtful that Mr Church's understanding, I do not mean him any disrespect, rises, or is capable of rising, to that level. Nonetheless, he has in the past applied himself as best he can to acquiring an understanding of the Islamic faith to which he converted while in custody in or about 2011. From the statements made to the experts, in particular Dr Eagle, he appreciated that at least some of the images he posted extolled the virtues of the Mujahideen engaged in war-like operations in Syria and Iraq. One post called for prayers for them.
7. As I have said, the State has proved the matters set out at [12] to [28] of my preliminary judgment to my satisfaction on the balance of probabilities. That portion of my judgment is set out below: The State also invokes the extended meaning given to paragraph (c) by s 10(1A). In particular, the State relies upon the extension of the meaning of the phrase advocating support for a terrorist act or violent extremism to include using or displaying images or symbols associated with a person, group or persons or organisation, or an ideology, that supports terrorists' acts or violent extremism. In essence, the State's main argument for the purpose of the preliminary hearing is that the allegations in the material relied upon, if proved at the final hearing, would justify a finding that Mr Church was a convicted NSW terrorism activity offender because he has previously made "any statement" advocating support for violent extremism by using or displaying images or symbols associated with an ideology that supports violent extremism. These statements included seven social media posts on three separate social media accounts controlled by him, at various times between 7 March 2013 and 23 February 2018. As will appear, I will focus on posts on two of the accounts. Very detailed submissions were directed to demonstrating that each of these accounts was associated with Mr Church. Whatever issue may be contested at any final hearing, I am satisfied that, at the fairly low level necessary for a preliminary hearing, the State's material is capable of establishing that matter on the balance of probabilities, the standard of a high degree of probability applying only to the question of unacceptable risk at the final hearing. Essentially the State relies upon the seven social media posts, Mr Church's association with certain individuals, his support for persons convicted of terrorism offences, Islamist literature found in his possession while he was in custody and certain writings of his own including letters to family members. To make good its case, the State relies upon the analysis of Johnson J in State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 at [160]-[162] to the effect that "like a circumstantial case in a criminal trial" it is necessary to consider the totality of the evidence relied upon by the State as a whole rather than "in a piecemeal fashion". Mr Church argued that even at the preliminary hearing the material relied upon by the State did not support a prima facie case. Much of it was entitled to little, if any, weight and the State's argument confused expressions of sincere adherence to the Islamic faith based upon, even if, a literal understanding of the Qur'an with the profession of an ideology involving violent extremism. Salafi-Jihadi violent extremism As Professor Greg Barton writes at [1.1.4] of his first report of 26 July 2020 (Vol. 2; tab 61; page 1852-1881): Fundamentalism, by definition, refers to religious movements, and other movements of ideas, that are anti-intellectual and reject long histories of scholarly effort and accumulated wisdom in interpreting texts. Fundamentalist movements tend to rely instead on charismatic lay people, dilettantes, and self-proclaimed experts whose relevant credentials are modest, who claim to be simply returning to literal and "straightforward" interpretation of scripture, which catch-cries of "back to the Qur'an" (or "back to the bible"). At the same time, they also claim to be returning their community of faith to an earlier golden age, which is generally at the time of the first generation of believers. In modern Islamic fundamentalism the claim is made that they are returning to the example of the Salaf al-salah - the righteous (salah) companions (salaf) of the Prophet Muhammad (in Protestant Christian fundamentalism the parallel would be returning to the time of the Apostles and the first century church). Professor Barton is not for a moment suggesting that Islamic fundamentalism itself is an ideology which supports violent extremism. On the other hand, he writes at [1.5.4]: The Arabic word "jihad" means to struggle or strive for something. It is often used to refer to struggling/striving by fighting in a just war, that is to say a war of self-defence. Salafi-jihadi violent extremists, however, see jihad as representing an obligation for all true Muslims, to be supported either through direct participation or through sponsoring. Moreover, they see jihad as necessary, and just, war that is not limited to responding reactively to acts of aggression but rather requires initiated acts of aggression against enemies of Islam. In Salafi-jihadi thinking the entire world has become a "domain of war" (darul harb). This is in sharp contrast with classical Islamic scholarship which sees the domain of war - darul harb - is limited to actual conflict zones. The Salafi-jihadi understanding of darul harb is used to justify pre-emptive violence against all who do not support their cause. Obviously if this opinion is accepted at the final hearing "any statement advocating support for … violent extremism" including "displaying images or symbols associated with … an ideology, that supports … violent extremism" on the part of Mr Church proved in evidence to the satisfaction of the judge would support a finding that he is a convicted NSW terrorism activity offender within the meaning of s 10 of the Act. In the somewhat different, but analogous context of terrorist offences created by the Criminal Code (Cth) the plurality of the High Court of Australia in The Queen v Abdirahman-Khalif [2020] HCA 36; 94 ALJR 981 at [47] wrote of the Islamic State as an organisation which existed, inter alia, to "remain (sic) and expand through the acquisition of territory by violent jihad". It sought to recruit members "to subscribe to the Salafist ideology, to accept that it was their religious obligation to use violence against non-believers": at [47]. However, I would not regard it as necessary that the evidence at this preliminary hearing should be capable of justifying a finding [of] adherence to the Islamic State. But the question is whether it would justify a finding at the final hearing that Mr Church had made statements advocating support for Salafi-jihadi violent extremism. Statements advocating support for violent extremism. As Ms Richardson submitted, the expression "any statement" would be satisfied by a single statement covered by the statutory definition. Seven are relied upon. These are set out at paragraphs [113]-[142] of the State's written submissions in chief. I do not propose to analyse each of them in the detail with which they have been discussed in argument by counsel. I acknowledge the force of Mr Stratton's submission that the text on a number of the posts does no more than recite a Qur'anic verse. However, it is the total image posted that one must have regard to when considering the probative capacity of the post in question. In any event, particular emphasis was placed by the State on a video posted on 31 July 2017. The video was drawn from YouTube and the text (omitting Arabic script which I cannot reproduce) is in the following terms: Jihad Nasheed come on immerse haya inghamiss Come on immerse in the dark disbeliever troops thrust your weapon in the heart of the criminal … I should also say that at this time Mr Church was using the name Shahid al Mujaahid. The expert Dr R.D. Shanahan, in his first report of 6 January 2021 translated the name as Jihadist Martyr, potentially not insignificant evidence. Other like names to similar effect are used. I interpolate that Mr Church told corrections officers that he understood the name Shahid translated as Witness. Even so, one is still left with evidence capable of proving that he adopted the online persona of Jihadist Witness. The post appears at Tender Bundle Volume 3, tab 73, page 2456-2457. According to Dr Shanahan, a nasheed is a chant or musical form of Arabic poetry that have been used by Islamist groups since the late 1970s. They reflect a strict Salafist interpretation of Islam that prohibits instrumental music. Jihadist nasheed is to appeal to the mujahideen. In his second report of 14 February 2021, Dr Shanahan (Volume 3; table 81; page 2707) said: The combination of the moderator's chosen name, his post entry saying that 'Islam will never be defeated' and his sharing of a jihadi nasheed indicates support for violent extremism. A second image was posted on 20 December 2017 under the same nom de plume. There is text partly in English and partly in Islamic script. According to Dr Shanahan in his second report, the meaning of the whole text is that entry to paradise requires belief in the oneness of God, a central [tenet] of Islam. In Dr Shanahan's opinion the Arabic script employed is the same as that found on the flag of Islamic State and used by Al-Shabaab in Somalia and Al-Qaeda on the Arabian Peninsula. In the opinion of the expert the use of the script may be understood as conveying support for Islamic state and, I infer, the other terrorist organisations mentioned. I record that Mr Stratton objected to the expert drawing conclusions about what was in the mind of Mr Church when he posted this material. I acknowledge the force of that objection. At the same time, his opinion will be relevant to facts in issue at the final hearing and, in conjunction with other evidence, may support an inference about the author's state of mind. The third image is an image of a green bird with the quote, "in the hearts of green birds… we shall roam in Paradise". The quote is drawn not from the Qur'an, but from the hadith literature which are, according to Professor Barton, "anecdotal accounts of the Prophet Muhammad's life". Professor Barton is of the opinion that the "imagery… has become popular with Salafi-jihadi militants (mujahideen) in recent decades, especially during the ISIS/IS fighting in Syria/Iraq" (first report at [1.2.3]). Contemporary use of the images apparently dates to the Bosnian conflict between 1992 and 1995. There was a second green bird image dated 3 August 2017 (Vol. 2; tab 70; page 2262). The opinion of Dr Shanahan is to the same effect. I acknowledge the force of Mr Stratton's submission that there is nothing overtly violent about these images. There is nothing overt or obvious to a viewer that would relate the images to violent extremism. However, that the availability of the inference contended for by the State may be contestable, at this preliminary stage, is not to the point. The expert evidence demonstrates that the inference contended for by the State is open. The next post is dated 17 April 2017 and appears to depict the image of a militant over which the text reads: A man who lowers his gaze is a real man because he is strong enough to fight his desires. The male in the image is covering his face and head with a keffiyah, he appears to be firing a gun, and his chest is emblazoned with the text of the Shahada - "there is no God but Allah and Muhammad is His messenger". An explosion is erupting in the background of the photograph. Professor Barton accepts that the words are "innoxious" but the combination with other elements, in his opinion, presents a clear association between the figure depicted and Salafi-jihadi violent extremist subculture. There is a second image dated 6 December 2017 of a kneeling uniformed mujahideen, his rifle is cradled across his lap and his hands are raised as in prayer. The Arabic script translates, according to Professor Barton, as "Oh God grant victory to the mujahideen brothers everywhere". Professor Barton acknowledges that the text of the prayer is somewhat cropped. In Professor Barton's opinion the image explicitly refers to Salafi-jihadi mujahideen. Other posts referred to Anwar al-Awlaki whom Professor Barton describes as the most influential of all western popularisers of Salafi extremism. He was killed in a drone strike by American forces. Yet other posts refer to Ahmad Musa Jibril, described by Professor Barton as a person who played a vital role in popularising Salafi extremism. The post dated 31 December 2017 contains an extract from a tract by Jibril warning against celebrating the holidays of infidels. Professor Barton regards the text as reflecting an extremely reactionary fundamentalist approach to interpreting Islamic belief and practice. It does not promote violent extremism but "sits comfortably with the fundamentalist Salafi sub-culture from which Salafi-jihadi violent extremism arises" (first report at [1.1.3]).
8. I should say here that both Professor Barton and Dr Shanahan, again separately, and for their own reasons, wanted to express the opinion that anyone who published what I have referred to as the images of concern must have appreciated their import as statements advocating support for violent extremism. I should say that their opinion purporting to give evidence as to Mr Church's state of mind at the time he posted each image of concern is inadmissible as not being wholly or substantially based upon the undoubted expertise of either of them. But given Mr Church's "admissions" and the consideration that there is now no real dispute about this issue, I infer that Mr Church appreciated in making the posts of concern that he was advocating support for violent extremism in the context of the conflict involving the so-called Islamic State in Syria and Iraq.

The unacceptable risk issue

1. In my preliminary judgment, having reviewed the evidence referable to the s 25(2) and (3) considerations, I concluded (at [82]) in accordance with s 27: … that the matters alleged in the material relied upon by the State, if proved, after a final hearing would, not must, justify the making of an ESO. … in particular in this context, I am satisfied to the extent necessary after a preliminary hearing that the matters alleged in the State's documentation, if proved at the final hearing, would, not must, justify the Court being satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.
2. The matters alleged in the State's documentation, at that time, that then seemed to me to be particularly relevant were: 1. Mr Church's bad record for the commission of serious crimes of personal violence in company (see preliminary judgment [54]-[55]); 2. psychological evidence establishing his very low level of verbal intelligence in contradistinction to his average level of non-verbal intelligence; 3. psychological and psychiatric evidence indicating that Mr Church is a person who's easily influenced and susceptible to manipulative exploitation by others; 4. his childhood deprivation and dysfunctional upbringing rendering him vulnerable to a need to belong, and to justify his belonging; 5. his admiration for the Mujahideen and his acceptance of the "green bird" romanticism; 6. a past history of suicidal ideation as a juvenile and in early adulthood related to his substance abuse; 7. the Risk Assessment Report completed by Dr Sweller without the cooperation of Mr Church including the application of the Violent Extremist Risk Assessment - 2R (VERA - 2R) leading her to express the opinion that Mr Church falls into a moderate-high range for participating in an act of violent extremism; 8. The wide range of misconduct covered by the definition of terrorist act in s 100.1 of the Criminal Code (Cth) adopted by s 4; and 9. the nature of the index offending involving two counts of driving in a speed dangerous to the public and two counts of engaging in a police pursuit, which I assessed as involving "significant danger and disruption to the public over a lengthy period requiring a diversion of significant law enforcement resources to contain and supress it" (preliminary judgment [89]).
3. I identified the relevant risk in the following terms: … Mr Church will commit a terrorist act, either of his own volition or with the encouragement of others, involving a random attack on innocent members of the public utilising a weapon of some kind with the intention of furthering his ideology and the intention of intimidating the public or a section of it. Of necessity the risk involves the potential for serious physical harm to a person or persons. If the matters alleged are proved, it may be that the likelihood of the risk materialising is not highly probable. But nor is it insignificant. And a not insignificant risk of the kind I have formulated would be, in my opinion, unacceptable.
4. As will appear, not all of these matters survived the final hearing.

Section 25 Considerations

1. In arriving at my preliminary conclusions, I had regard to such of the mandatory considerations established by s 25(3) as were touched upon by the State's documentation. Having regard to s 23(3), this was virtually all of them. I also bore firmly in mind that the safety of the community is the paramount consideration: s 25(2). I had regard to the following: 1. Dr Sweller's Risk Assessment Report: s 25(3)(d); 2. Mr Church had completed the EQUIPS Aggression and EQUIPS Foundation Programs while in custody; the Traffic Offender Intervention Program after his release; sought psychological intervention from a registered psychologist; but, discontinued his participation in the Countering Violent Extremism program on the basis that he was not an extremist: s 25(3)(f); 3. there appeared to be no other available options to manage the posited risk: s 25(3)(g); 4. although he had not been compliant with the conditions of his release to parole on 30 January 2007, 5 March 2010 and 24 February 2013 due to further offending, he was entirely compliant with the requirements of his release to parole on 19 July 2020 which represented "a vast improvement". From this I considered he would comply with an ESO if made: ss 25(3)(h) and 25(3)(i); 5. I had regard to his poor previous record for crimes of violence: 25(3)(j). I did not take into account his involvement in certain financial offending which it will be necessary to refer to for the purpose of this judgment; 6. the view of his Honour Magistrate Van Zuylen when sentencing Mr Church for the index offending that he had engaged in "extraordinarily serious driving behaviour … [requiring] no … alternative than a sentence of full-time imprisonment": s 25(3)(k); 7. I had regard to the results of previous psychiatric and psychological assessments detailing his deprived and dysfunctional upbringing, a juvenile diagnosis of Attention Deficit Hyperactivity Disorder, and in particular the opinion of Dr Gordon Elliot expressed in his report of 11 December 2019 that he may suffer from psychotic symptoms from time to time due to substance abuse and he exhibits "significant antisocial personality traits": s 25(3)(b); 8. the material I have already referred to in relation to the question of whether Mr Church is a convicted New South Wales Terrorism Activity Offender, suggesting his religious beliefs involved some advocacy of violent extremism: s 25(3)(l); 9. other matters relating to religious Facebook posts, the content of 21 Islamic books seized during a cell search on 6 May 2020, and his association with a number of persons convicted of terrorism offences or in respect of whom cogent material suggested support for violent extremism. These additional matters were summarised at [71]-[78] of my preliminary judgment. I should interpolate that of the 22 Islamic books seized only 1 was identified by Professor Barton of being of concern. Moreover, he did not regard the material as establishing that Mr Church's wife was an association of concern: s 25(3)(n).
2. With the exception of acceptance of Dr Sweller's opinion and the relevance of the history of suicide ideation and self-harm, I am satisfied that my provisional findings have been proved on the balance of probabilities. I have rejected Dr Sweller's opinion because I prefer the opinions of the court appointed experts, Dr Eagle and Dr Seidler, of which I now have the benefit. I accept Mr Stratton's submission that Dr Sweller's opinions are deprived of the probative value they might otherwise be afforded by her assumption that there had been no positive changes in Mr Church since his conviction for the index offending. In fairness, Dr Sweller took that approach because Mr Church declined to cooperate with her assessment, refused to be interviewed and she was left in the position of having to undertake a "desktop" assessment on the papers.
3. My assessment of the weight I should afford Dr Sweller's opinion in this case should in no way be taken as to calling her expertise into question. She is obviously very highly qualified and well positioned to express opinions of the type she proffered in this case. Moreover, Mr Church's choice not to participate is a factor which could in some circumstances leave him open to the drawing of a Jones v Dunkel inference making it easier to accept Dr Sweller's views. These are civil not criminal proceedings. On the other hand, as directed, Mr Church did attend the examinations with Dr Eagle and Dr Seidler, and from their evidence I infer that he was fully cooperative and understandably anxious to be seen as putting his best foot forward.

Additional evidence led at the final hearing

1. It is not necessary for me to refer in detail to all of the additional evidence read or led at the final hearing. I will refer to those aspects of it which I find salient. In his affidavit of 18 May 2021, Shane Bagley, a senior official with the Terrorism High Risk Offender Applications Unit, states (at [20]): [Mr Church's] current enforcement officer is XXXXX XXXXXX, who has been in the role since 19 March 2021. Overall, [Mr Church] has been compliant and cooperative since being under XXXXXXXX's supervision. He has not been the subject of any warnings and has not breached his supervision order. He accepts supervision and guidance quite willingly. The defendant appears to understand his obligations and the expectations of his enforcement officer. He often works five or six days per week. When not working, he spends most of his time with his partner … and her children. [Mr Church] appears to be making a sustained effort to live a functional and law-abiding lifestyle. He has remained abstinent from alcohol and other drugs which is remarkable given his history. There are no problematic or concerning associations that have come to his enforcement officer's attention. As I pointed out in my preliminary judgement, Mr Church has been in full-time employment as a scaffolder virtually since his release to parole.
2. In his affidavit of 31 May 2021, Imam Ahmed Kilani, a prison chaplain employed the Islamic Council of New South Wales to provide pastoral support to Muslim inmates in New South Wales correctional centres, states that he has been involved with government and associated agencies on issues of counter-terrorism and countering violent extremism to assist authorities in developing plans for disengagement of inmates from religious extremism. He has been involved as the Religious Support Officer for the Proactive Integration Support Model, a CSNSW program for facilitating the de-radicalisation, disengagement and reintegration of inmates either charged with terrorism offences or deemed at risk of engaging in Islamic extremism.
3. Imam Kilani first met Mr Church in 2018 at Long Bay Correctional Complex. He visited once a fortnight to minister to 10 or 15 men and Mr Church attended his sessions. Because his work as a chaplain took him to various correctional centres he was not always able to attend the Long Bay meetings. He trained some of the men to lead the sessions in his absence, including Mr Church. I should say that Mr Casselden SC, who appeared with Ms Palmer and Mr Varley for the State, argued that I should give little weight to expressions of opinion by Imam Kilani about the nature of Mr Church's religious views. However, I think given his education, training and experience, particularly his involvement in counter-extremism programs, he is well qualified to express opinions about the nature of Mr Church's religious views, at least so far as they were expressed to him. Imam Kilani considers Mr Church to be a moderate Muslim. He is very comfortable with Mr Church's way of thinking from an Islamic point of view.
4. From time to time Imam Kilani mentored Mr Church on a one-on-one basis discussing Theology. He states that he "wouldn't risk compromising the security of the gaol, having someone teach misguided teachings of Islam and harming [Imam Kilani's] own professional reputation" (affidavit, at [11]).
5. He still has contact with Mr Church in the community, mainly by telephone. He regards Mr Church as someone who takes his faith seriously. He has seen nothing that raises alarm bells with him "regarding teachers, books or scriptures that he has been reading" (affidavit, paragraph 15).
6. I regard Imam Kilani's opinion to be worthy of weight.
7. Mr Church's brother Jesse has also provided an affidavit, affirmed on 1 June 2021. He is a resident of Hamilton, New Zealand. He affirms that he is a committed Christian attending church every Sunday and during the week. He states that he was initially concerned when he found out Mr Church had converted to Islam. He states that Mr Church has told him that killing is not part of the Islamic faith and that terrorism is contrary to the Qu'ran. He regards his brother's faith as "genuine". He stated (at affidavit, paragraph 14): [Mr Church's faith] has done a lot of good things for [him]. I have seen a lot of change and he has become a better man.
8. An affidavit of 1 June 2021 from Mr Church's leading hand at work, Raymond Karl Tauthi Bluett, was also read. He states that he is Mr Church's direct supervisor. He said that Mr Church is a hard worker who follows directions and is punctual. He also points out that the nature of the work requires flexibility in terms of hours and travel. He said that workers in the industry must be prepared and able to be in a position to start a new job at short notice. "You just have to follow the work" (affidavit, paragraph 5).
9. I have also received a report of from Billel Rababi, psychologist whose been treating Mr Church on referral from his general practitioner since August 2020. No psychotic symptoms were identified, although there was evidence of anxiety and depressive symptoms during the treatment sessions, especially when discussing Mr Church's childhood trauma and the poor decisions he has made during his adult life. Although Mr Church displays symptoms of "depression, anxiety and stress" this may not be clinically significant as his scores did not register on the Depression, Anxiety and Stress Scale (DASS - 21). Perhaps of some concern, Mr Church denied suicide attempts or self-harm in the past which is inconsistent with other contemporaneous material. I interpolate that he downplayed these aspects of his history in consultation with the court appointed experts, particularly Dr Seidler, who challenged him on the basis of the historical clinical material with which he had been provided.

Section 25(3)(a), evidence of court appointed experts

Dr Kerri Eagle

1. Dr Kerri Eagle is a Consultant Forensic Psychiatrist. Her expertise was not in question. She interviewed Mr Church for a period of 2 hours and 40 minutes on 22 April 2021 and produced a comprehensive report dated 3 May 2021.
2. Dr Eagle was of the opinion that Mr Church did not display any signs or symptoms consistent with a major mental illness. Like Dr Elliot, she was of the view that transient psychotic symptoms, of which Mr Church had complained from time to time, were related to psychotic episodes brought about by illicit substance abuse. She diagnosed a substance use disorder which Dr Eagle regarded as being in remission while Mr Church was under supervision. This circumstance, as I have pointed out above, appears to be corroborated by other evidence.
3. Although Mr Church suffered no major mental illness, again, like Dr Elliot, Dr Eagle was of the opinion that Mr Church met the criteria for an Antisocial Personality Disorder. She considered that there was evidence of behaviours indicating a Conduct Disorder prior to the age of 15 years including juvenile offending. Such conduct disorders are often a precursor to the development of an Antisocial Personality Disorder.
4. For risk assessment purposes, Dr Eagle, like Dr Sweller and Dr Siedler, applied the VERA - 2R, which Dr Eagle described as a structured professional judgment tool. The expert explained that violent extremism or terrorism is rare, involving an insufficient cohort to support statistical or actuarial diagnostic tools.
5. After a thorough review of the material, and a close analysis of it and the content of her clinical consultation with Mr Church, Dr Eagle expressed the following opinion (at [219.3.2 - 3]): Mr Church's primary risk indicators appear to be his apparent use and seeking of violent extremist materials; his contact with violent extremists; and his susceptibility to influence, control or indoctrination. His motivations for group belonging, for instance, increase his susceptibility to influence. Mr Church's history of violent offending, pro-violent attitudes and his access to funding and organisational skills provide him with the capacity to engage in acts that may give rise to a serious terrorism offence. The definition of violent extremism is not the same as the legal definition of a serious terrorism offence, but would encompass a serious terrorism offence. Mr Church would appear to be at an increased risk of behaviours that might facilitate the recruitment of individuals for a terrorist organisation, raise funds to support terrorist activities and/or providing support to a terrorist organisation. Dr Eagle emphasised the relevant risk scenario relating to Mr Church in the following terms (at [218]): Mr Church is potentially at an increased risk of engaging in a terrorist act in circumstances where he is isolated from family and prosocial supports, feels an increased sense of grievance or stress and is exposed to peers who hold violent extremist views or are associated with a terrorist organisation. Mr Church would appear to be most at risk of recruiting individuals for a terrorist organisation, raising funds to support terrorist activities and/or providing support to a terrorist organisation. She regarded Mr Church's commitment to his wife and to her children, and the stable home environment that circumstance may provide may be such as to enable him to disengage from his former lifestyle including associations with antisocial, extremist and pro-criminal peers ([217]). These circumstances "could be highly protective" ([219.6.6.1]). The expert noted Mr Church's sense of pride and satisfaction arising from his role as a breadwinner. She also added ([219.6.9.1]): Employment increases stability, provides purpose and reduces unstructured time. I am of the view that Mr Church's current circumstances and employment reduce his risk of engaging in conduct that may result in a serious terrorism offence.
6. It will be apparent that Dr Eagle's formulation of the risk is quite different from my provisional assessment of the risk which the State's supporting documentation was capable of supporting. In oral evidence in answer to questions asked by me she confirmed the following (at 64.22 - 27T): Q. And do I understand you correctly that you're not of the view that he would directly commit a violent, terrorist act, either of his own volition or with the encouragement of others? A. There was no information that would, you know, enable to form a view that he was at risk of that, no. Q. Okay. If I can put it this way, and forgive me if I'm not expressing it in the right way, you wouldn't see him - in your opinion, and on the information you have given as to the type of individual - posed a risk of committing a random, violent attack on innocent members of the community, of the type you've read about in the papers and see overseas? A. Not on ideological grounds, I didn't see any indication of that, no. Q. Sort of asking that question. As I know you are, I'm conscious of some of the offending he did commit in his younger years. A. Yes.
7. Given Dr Eagle's opinion, it is necessary for me to refer by way of interpolation to part of Mr Church's criminal history I omitted from my analysis above which concentrated upon his history of violent crime. On 2 July 2019 while on remand for the index offending, Mr Church was charged with a number of offences relating to participation in a criminal group for which he was sentenced to a fixed term of imprisonment of 4 months to be served concurrently with the sentence for the index offending. He was charged with a co-accused named Munzer Wraideh. A large number of companies were registered through a website utilising a number of forged credit cards in a false name. This offending occurred in January and February 2018 which is at the end of the period of his social media posting activities. Mr Church's name and date of birth were used in relation to ten of the companies and another co-accused Ramialel Namboulsi, the partner of Mr Wraideh, was utilised for another nine companies. Attempts were made by all three co-accused and another person to open a business bank account relating to each of the companies. Among them, from the police facts, Mr Wraideh appears to have been the "master-mind". He was careful that his name was not associated with the registration of any company. It is also apparent from the police facts that he may have been receiving instructions or directions from another unknown person through the instant messaging app, "WhatsApp".
8. Returning to Dr Eagle's oral evidence, in cross-examination by Mr Stratton, Dr Eagle said that Mr Church's history of self-harm with suicide ideation did not increase his risk of a serious terrorism offence. And she agreed that the last posting of any material advocating support for violent extremism was in about February 2018 (58.21 - .35T).
9. She also agreed that she regarded the associations referred to below (at [61]) as a "risk indicator". She accepted that Mr Church had maintained that he had severed ties with those people. She was asked the following at (59.20T). Q. Could I put this proposition to you that another explanation may be a number of changes in the defendant's life and, in particular, his now being in a stable marriage and family relationship and having a stable job? Would you agree with that? A. Yes, not as a separate explanation but more as potentially contributing to a reformulation of his beliefs certainly, yes.
10. Notwithstanding the pro-social changes Mr Church had made in his life, Dr Eagle disagreed that the relevant risk "is either non-existent or negligible" (61.35 - 40T).
11. Dr Eagle was not prepared to say other than she regarded the risk as more than negligible or non-existent. She was not prepared to otherwise quantify it. She regarded his recent behaviour as reassuring, but she considered the period of his positive behaviour as being insufficient "to demonstrate the capacity for sustained independence, employment, stable relationships, and those types of factors. And the avoidance of problematic influence, problematic ideas" (62.15T).
12. In Dr Eagle's view a longer period of continued supervision was required.

Dr Katie Seidler

1. Dr Seidler, like Dr Eagle, is a highly qualified expert in this field, although her professional status is that of clinical and forensic psychologist. She interviewed Mr Church for a period of 3 hours in her rooms on 26 April 2021, producing a detailed report of 3 May 2021. She too set out a comprehensive review of the relevant material with which she was supplied, and also administered the VERA - 2R as a structured professional judgment risk assessment tool. She too, acknowledged the limitations of VERA - 2R, but regarded it as providing "a meaningful analysis of an individual's possible risk" ([149]). She pointed out (as had Dr Eagle) (at [151]): [Mr Church] did not express any sense of grievance or injustice, he expressed support for Australia and the democratic values it upholds and he described being embracing of those who are different, including non-Muslims.
2. She expressed the opinion "that Mr Church poses a Low-Moderate risk of future violent extremism" ([156]). She said: … [H]e does not endorse an ideology consistent with such violence, he does not engage in "us" and "them" thinking, he does not express resentments or grievances towards the State or non-Muslims and Mr. Church reported embracing others, including those who support a different religious faith. It is also noted that Mr. Church does not express hostility towards Australia or the democratic values this country upholds and there is no evidence that he has trained in military action or extremist ideology per se. However, it is noted that Mr. Church has engaged with potentially extremist content online, in addition to which he has, and has had, personal connections with others who may be of concern in relation to violent extremist ideology. Mr. Church also appears to be someone who may be vulnerable to the influence of others. Tempering against this however are strong protective influences associated with the fact that Mr. Church does not condone violence for social, religious or political ends nor do those close to him, apparently. Like Dr Eagle, she did not regard the history of self-harm and suicidal ideation as relevant to considering his risk. She concluded: It is my assessment that Mr. Church poses a Low/Moderate risk of future violent extremism and that whilst it is not impossible that Mr. Church may engage in a serious terrorism offence in the future, there is no evidence that this is likely based on his current functioning. For this reason, I do not consider an ESO necessary to manage Mr. Church's risk to the community
3. Dr Seidler did not formulate the risk she assessed in terms of how it may manifest itself or materialise. I asked her about this when she gave oral evidence (80.10T). She said at (80.25 - 30T): This is probably what - what's going to look if we start to see that risk emerging. For this particular person, he's never engaged in an act of violent extremism. So we don't have anything to go on, and [the best] predictor of future behaviour is past behaviour. So for him I didn't feel comfortable saying it's probably going to look like this, when that's - for me - completely making up something that hasn't existed previously. In other cases, they have shown behaviours before in the past that we could use; there aren't any in this case.
4. Dr Seidler also said at (81.5 - 45T): … So the likelihood is, if this occurs it's going to be somebody else's motivation, somebody else's interest, and somebody else's drive, and he's going to get caught up in that because he's associating with them. … But again, come back to what I said in the report; there's going to be lots of warning signs for this. He's going to show this warning - this increased risk over a period of time before that risk was to eventuate. And I would say that will come to the attention of, you know, various intelligence holdings, possibly, in that process. … At the moment, he's functioning really well. He's really committed to a positive lifestyle. There's no evidence of current risk in any of those areas that we should be concerned about.
5. She did not believe that Mr Church had the intellectual capacity, because of his low verbal intelligence, to be involved in planning or at the organisational level of a serious terrorism offence (82.5 - .10T). "He would be muscle".
6. In re-examination, Dr Seidler said that on the results of the test administered by her Mr Church "comes up as being someone [who is] trying to … impress positively" (83.10T).

Professor Gregory Barton

1. I have referred to much of the opinions of Professor Barton and Dr Shanahan above. It remains necessary to say something of their oral evidence. Neither moved much from their evidence in chief as contained in their reports.
2. Professor Barton was called to give oral evidence by audio-visual link from Melbourne. In cross-examination Professor Barton accepted that it would be very unlikely that Mr Church would be literate in formal Arabic and that he would have a very limited appreciation of Arabic script, I inferred, depicted in the material he had posted to social media (13.30 - 40T). Professor Barton pointed out that there are about 1.9 billion adherents of the Islamic faith across the world speaking multiple languages. His particular concern was whether there was any association with violent extremism in the material he was asked to consider.
3. When asked about the 22 books seized from Mr Church's cell, Professor Barton agreed that so far as he could tell only one book was of concern. It was entitled "The Reality of Shiism" and was a sectarian denunciation in hateful terms of Shia Muslims from a Sunni extremist position (15.7T). However, the work was not directly focused on Salafi-jihadi violent extremism. But it may be used to justify extremist violence against Shia Muslims (15.15T). It did not discuss jihad, "So it, by itself, is not by itself advocating Salafi-jihadi violent extremism" (15.27T). He agreed that, "the other 20 books" did not advocate for violent extremism. He said, "These are not works advocating Salafi-jihadism" (16.8T).
4. Although Professor Barton would not accept that the particular social media posts I have analysed above were unrelated to advocacy for Salafi-jihadism, he did agree that the last of them he was asked to consider was dated February 2018 (30.5T), with none since.

Dr Roger Shanahan

1. Dr Shanahan was called to give oral evidence and his four reports between 6 January 2021 and 14 May 2021 were tendered. In cross-examination, it was put to Dr Shanahan that of the 10 social media posts of Mr Church he was asked to consider only two caused him concern. Dr Shanahan thought there were four (36.10 - .20T).
2. The impression I formed from the cross-examination was that Dr Shanahan accepted that the literal text of the images posted did not expressly advocate terrorism or violent extremism. His thesis, based on his understanding of these matters, taking each image as a whole and all of them together if published without any counter or disapproval, was that the person making the post is "implicitly advocating the views of the original author" (44.10T - .15T) of the whole image. Importantly, he said the "Qu'ran is an interpretive text" (50.19T - .30T).

Does Mr Church pose an unacceptable risk?

1. As Mr Casselden submits, it is important that I direct myself by reference to the decision of the Court of Appeal in the State of New South v Naaman (No 2) [2018] NSWCA 328; 276 A Crim R 30 at [29], which I set out in full as follows: (1) First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. (2) Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. (3) Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". (4) Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence". It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct. (5) Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. (6) Sixthly, if so satisfied, then the discretion under [s 25] is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order.
2. I bear in mind that the evaluation required by the statute requires is to be "forward-looking"; it is not determined by "what has happened in the past". Moreover, the usual civil standard of proof is elevated or enhanced by the expression "a high degree of probability". The fifth principle, that a slim probability of an unsupervised defendant committing a terrorist act may be unacceptable having regard the possible consequences of the act even if the probability of the risk eventuating is low, must be considered in the light of the decision of the High Court of Australia in Minister for Home Affairs v Benbrika [2021] HCA 4; 95 ALJR 166 at [46]-[47], that for a risk to be unacceptable the contemplated offence involved must be of a kind that can be seen to pose a real threat of harm to the community. In the same case Gageler J said (at [79]): Prevention of harm is a legitimate non-punitive objective, at least where the harm is grave and specific. Mere prevention of the commission of a criminal offence is not. The objective in question is the legislative objective of a law conferring power on a court to curtail the liberty of the citizen by judicial order other than as punishment for a crime of which she or he has been convicted.
3. I accept of course that the curtailment of Mr Church's liberty proposed by the State by way of an ESO of one year's duration is irrelevant to the assessment of whether he poses an unacceptable risk of committing a serious terrorism offence if not kept under that supervision: Lynn v Sate of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44]. However, the statements from Benbrika well illustrate the content of the phrase, "unacceptable risk". Benbrika is concerned with cognate Commonwealth legislation, albeit focussed on continuing detention orders.
4. It remains that the most important matters informing the evaluation of future risk in this case are those I set out at [79] of my preliminary judgment and summarised at [16] above. They require considerable modification in light of the additional evidence led at the final hearing. Certainly, the evidence of the court appointed experts is to the effect that past history of suicidal ideation and self-harm does not inform the risk of future engagement in a serious terrorism offence. Likewise, for the reasons I have given, I prefer the evidence of Dr Eagle and Dr Seidler to that of Dr Sweller. I was also impressed with the evidence I have recounted at [23]-[31] above from Mr Bagley, Imam Kilani and Mr Church's brother about the positive effect of his Islamic faith upon him, the moderate nature of his religious beliefs currently and his complete compliance with his recent supervision under both his parole and the ISO. If I may say with respect, Imam Kilani's opinion about Mr Church's beliefs are likely to be more reliable than the extrapolations of Professor Barton and Dr Shanahan about Mr Church's state of mind, however impressive their opinions were otherwise. So far as good conduct on supervision is concerned, I acknowledge Dr Eagle's view that greater time under supervision may allow greater confidence in future prospects.
5. All of the matters of concern I have identified as relevant to risk relate to past conduct. Future probabilities may always be informed past conduct, but as I have said and on the authority of Naaman (No 2), past conduct is by no means determinative.
6. I remain concerned about the social media posts which I accept in the ways I have set out above, and on the basis of that part of the opinions of Professor Barton and Dr Shanahan I do accept, advocated support for violent extremism. I remain concerned too with Mr Church's associations within s 10(1A)(b) with persons who have advocated support for violent extremism. So far as the latter is concerned, the evidence in that regard is set out at [74] - [78] of my preliminary judgment. As this evidence has not changed, I set it out again: In addition, the State submits that Mr Church has a number of associates of concern. In his Facebook persona, Mr Church was "friends" with Radwan Dakkak. Their "conversations" have fundamentalist content, but more particularly on 18 December 2020, Dakkak was convicted of and sentenced for 2 counts of knowingly associating with a member of a terrorist organisation contrary to s 102.8(1) of the Criminal Code. He is also subject to an Interim Control Order under Division 104 of the Criminal Code imposed by Yates J on 31 December 2020 in the Federal Court of Australia. Falamani Moeakiola visited Mr Church in custody 13 times between July 2019 and February 2020. Mr Church denies an ongoing association. Police intelligence suggests he is a radicalised individual. Adnan Baradaaji appears to be a close associate of Mr Church. He too has visited Mr Church in custody. More significantly he provided a character reference at the proceedings on sentence for the index offending, vouching that Mr Church had performed volunteer work with the Islamic charity, Dar Al Quran Wa Sunnah. Interestingly, a search warrant executed by NSW Police on 28 November 2019 at Mr Baradaaji's home located Mr Church's Australian passport there. Intelligence reports suggest he has extremist Islamic views and is a supporter of ISIS. It is suggested he has provided financial support to would-be "foreign fighters". Police intelligence recorded a report that he is attempting to recruit young men and women to the cause of Islamic State. I acknowledge that intelligence reports may be entitled to limited weight at the final hearing. Isaac El Matari is a Facebook "friend". He apparently lived at the premises operated by Dar Al Quran Wa Sunnah. He was mentioned in the reasons for sentence in R v Dakkak [2020] NSWSC 1806 at [8], Hamill J, as having travelled to Lebanon in 2007 in an unsuccessful attempt to join Islamic State. On 2 October 2020, he pleaded guilty to two serious terrorism offences contrary to s 119.4 and 101.6 of the Criminal Code (Cth). On 27 August 2014 Mr Church provided the address of Wisam Haddad as an intended residence if released to parole. Mr Haddad operated the Al Risalah bookstore said to be a haunt of adherents of violent extremism. A sometime associate, Blake Pender, was convicted of possessing a knife connected with a terrorist act, contrary to s 101.4(1) of the Criminal Code (Cth). Mr Church and Mr Pender were associating on 20 May 2016 when spoken to by police. The State also seek to impugn Mr Church's association with his wife, XXXXX XXXXXX. Her brother is said to have been a "foreign fighter" killed in Syria or Iraq. There are a number of transcripts of gaol telephone conversations between Mr Church and Ms XXXXXX relied upon by the State. Apart from one not wholly decipherable reference to a Qur'anic verse about the release of hostages, having read each of them for myself carefully, I am not convinced that they would justify an inference at the final hearing that she, herself, is a person of Salafi-jihadi violent extremist views. Ms XXXXX seems to be a mixed influence in Mr Church's life. Their relationship has at times been fractured. In one of the calls at least there is acrimony between them over charges by Mr Church that Ms XXXXX "dishonoured" him. He has also described her as controlling and there is a suggestion in the material that he discontinued the CVE psychology program at her behest. On the other hand, it is apparent from Dr Sweller's opinion that she and her children are a significantly stabilising influence in Mr Church's life, at least currently. It cannot be overlooked that they are married and there is a limit to the legitimate reach of the State into the personal life of the individual. I am satisfied for the purpose of the final hearing these matters individually have been established on the balance of the probabilities. I am not of the view that it's necessary for each of these facts to be established to the statutory high degree of probability. The only additional evidence in regard to these matters is some further evidence from Dr Shanahan about the significance of some of the content of gaol conversations between Mr Church and his wife. Frankly, I remain of the view expressed at [77] of my preliminary judgment that the content of the conversations, notwithstanding Dr Shanahan's further evidence, does not justify an inference that Mr Church's wife is herself a person of Salafi-jihadi violent extremist views. I also accept that she has on other occasions expressed disapproving views of those who have supported or engaged in violent extremism. In my judgment it would inappropriate to tar her with the brush of her brother's extremism. Her fundamentally pro-social influence in Mr Church's life, apparent from Dr Sweller's opinion, is confirmed and supported by the opinions of Dr Eagle and Dr Seidler. On the whole I am satisfied that she is a positive influence in Mr Church's life currently.
7. The weight to be afforded to the social media posts is somewhat diminished by the consideration that the last of them was posted more than three years ago. Likewise, none of the associations of concern are current as has been confirmed in the affidavit of Mr Bagley. Indeed, it is apparent that they are mostly now out of circulation and it seems unlikely that Mr Church will have any further association with them whatsoever. My overall impression of these matters is that Mr Church is a person who may have stood on the brink and contemplated the abyss but chose to step back and walk away.
8. Although I was greatly impressed by Dr Eagle's evidence and her expertise, I confess that I found her formulation of the risk somewhat surprising. Mr Church does not strike me as a person likely to be involved in planning, organising or financing terrorism offences to be committed by others. I am not persuaded that the evidence available in relation to the participation in criminal group offending casts him in any way as the brain behind those matters. Mr Wraideh seems to have been in that position and even he seems to have been under the control or direction of an unknown person or persons. It seems Mr Church was a foot soldier in that enterprise. This offending, which is entirely out of character with his previous offending, was dealt with comparative leniency in the Local Court having regard to his poor criminal record, which says something about how the seriousness of his part in the offending was assessed.
9. I acknowledge the force of Dr Eagle's opinion that, perhaps the apparent turn-around in Mr Church's life is not sufficiently well established to be confident that he is a reformed character. But this concern falls a long way short of satisfaction to a high degree of probability that he poses an unacceptable risk.
10. Dr Seidler considered the risk low to moderate. However, for what it is worth, she was not of the view that continued supervision was justified. She was, for obvious reasons, reluctant to buy in to prognosticating about the sequence of events which may lead to regression on the part of Mr Church to the point where he would commit a serious terrorism offence. She regarded that prospect as possibly occurring, if at all, in the longer term as a result of the loss of his current pro-social supports, not only his family supports, but also his stable employment.
11. What is clear is that neither court appointed expert embraced the formulation of risk I found the State's documentation capable of proving for the purpose of my preliminary judgment. I feel compelled to forsake it.
12. Although, I repeat, I have some concerns based upon the factors I have identified, I am not satisfied to a high degree of probability that Mr Church poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO.
13. In making this decision, I have had regard to the other s 25 considerations as summarised above, including the paramount consideration of the safety of the community, although I acknowledge they are not mandatory in relation to this question.
14. It follows that the s 20(d) test is not satisfied and under s 25(1)(b) I must dismiss the State's application.

Other matters

1. There is little point in making contingent findings on the basis that, contrary to my decision, s 20(d) had been satisfied. Obviously, were the risk unacceptable there is limited scope for declining to make an order unless the sixth principle established in Naaman (No 2) is engaged. In the circumstances of this case it could well have been counter-productive to impose an ESO on Mr Church, even for only one year, given the excellent progress he has made to date.
2. There is even less utility in dealing with the question of the conditions appropriate to an ESO had I been persuaded otherwise. Those matters must address the risk identified and formulated under s 20(d). The parties agreed on most conditions as recorded in MFI 1, which I have placed with the papers. I would have continued the regime which I established for the purpose of the ISO, albeit with some adjustments. For instance, having regard to Dr Eagle's opinion, I probably would have dispensed with the curfew, notwithstanding that Corrective Services and the police regard it as a virtually essential condition. His movements would still have been required to be documented otherwise.

Orders

1. For these reasons, my orders are: 1. Under s 25(1)(b) Terrorism (High Risk Offenders) Act 2017 (NSW) the State's application for an extended supervision order is dismissed; 2. The interim supervision order extended to expire on 19 June 2021 is dissolved; 3. Third parties may not access the court file without the prior leave of a judge of the Court which may not be granted except on first extending to the parties a reasonable opportunity to be heard; 4. Liberty to the defendant to apply in respect of costs exercisable by notice of motion filed and served within 14 days.

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: 18 June 2021