State of New South Wales v Elomar

Unacceptable Risk

1. Against that background, it is necessary to address the criteria for determining unacceptable risk based on the matters alleged in the supporting documentation.
2. The State tendered two reports from a psychologist, Dr Katie Seidler (see s 25(3)(b) and s 23(3)(b)). The first of those reports is dated 16 November 2020. In that report, Dr Seidler provides a detailed review of the material concerning the relevant risk posed by the defendant. Also, Dr Seidler interviewed the defendant on 10 November 2020. It should be noted that her report contains a number of matters that are favourable to the applicant. Mr Lange pointed to the following passage in that report: "… it is my view that Mr Elomar's offending behaviour is best understood within the context of antisocial attitudes and negative peer influences, in addition to a lack of personal identity and ongoing concerns with impulsivity, poor decision making and a limited consequential reasoning, which were far more prevalent up until fairly recently. The same can be said for Mr Elomar's behaviours of concern assumed to relate to potential terrorism risk. In other words, Mr Elomar does not present as someone with a strong committed faith, as someone who holds extremist ideological views or who has a commitment to violent extremism or even jihad. However, he is someone who, by virtue of his close personal connections and lifestyle, is connected to a people who are of a concern to national security and who, at various times, have influenced his speech, behaviour, activities and manner of relating. As such, whilst I am not of the view that Mr Elomar would ever be a driver of terrorist action, nor is there evidence that he will be strongly motivated by political action or extremist violence, there is the possibility that Mr Elomar may be influenced by others that he associates with to become part of something organised and motivated by others. This has the potential to involve an act of serious terrorist violence but it is noted the risk is chronic and stable, rather than being acute. Further to this, whilst the conditions of an ESO appear to have had a stabilising influence on Mr Elomar, including limiting the access that he has to people of concern, including thereby also the intensity of these connections, the risk will remain by virtue of the people in his life and therefore, ultimately, it will be Mr Elomar himself who will need to manage this risk rather than this being done externally."
3. From this passage, Mr Lange emphasised Dr Seidler's characterisation of the defendant as not being someone who holds extremist ideological views, and her ultimate conclusion that the question of risk is something that the defendant will have to address himself. To this, I would add that Dr Seidler's overall assessment of the risk posed by the defendant was as follows: "Overall, risk assessment in this case would indicate that Mr Elomar's risk for future extremist violence is in the moderate range, and similarly, his risk for engaging in acts of criminal violence is also rated as moderate. However, Mr Elomar's risk for future generalised offending is rated as high. The primary risks across all instruments are Mr Elomar's associations with antisocial others, some of whom also espouse ideologies consistent with violent extremism. Mr Elomar, himself, [h]as also been involved in an antisocial peer culture and routine for many years and this gave him a way of operating within his personal connections in a manner that he perceived gave him acceptance, belonging and reputation, especially when coupled with the use of violence or aggression. This behaviour was also reinforced by Mr Elomar's own personality structure and attitudes and although I note there has been some attenuation of this, seemingly with maturation, these ways of dealing with life stressors and interpersonal challenges still remain the 'fall back' for Mr Elomar. On the basis of the above, it would seem that Mr Elomar committing a future crime of a generalised antisocial nature is much more likely than one of violence or extremist violence and in my view, consistent with his history to date, a further violent offence within the context of an antisocial peer culture, is more likely for Mr Elomar than a terrorist offence. That being said, Mr Elomar is vulnerable to the influence of others as stated and therefore, whilst I do not consider him a risk for planning or organising a terrorist act independently, it may be that Mr Elomar is influenced by others and become involved, especially if these people are important to him and influential in their manner."
4. Of course the assessment of risk posed by the defendant in this case is not addressed to the possibility that he might engage in some "generalised offending in the future", but to the risk that he might engage in the commission of a serious terrorism offence. That said, just because there is a greater risk that someone might commit some form of generalised offending does not mean that the risk of their committing a serious terrorism offence is acceptable.
5. The other report prepared by Dr Seidler is dated 8 December 2020. It was prepared following her being given access to further documentary material. Overall, there is no material difference between the opinion that Dr Seidler expresses in that report and that which I have cited. It is sufficient to note the following conclusion: "On the basis of the information available to me, I remain of the view that the most likely influence for this ideology was the people that Mr Elomar was in close association with, whose behaviours, attitudes and relationships influenced Mr Elomar in his own thinking and viewpoint. In the absence of these close and regular connections and with Mr Elomar now being in the community and involved in other pursuits, including reconnecting with his family in a more mature manner, it seems that this previous commitment has waned. To this end, it seems to me that rather than being a strong personal commitment of faith and ideology, Mr Elomar's previous views, beliefs and behaviour can be best understood as part of the influence enacted on him by those he was associated with. This is reflected in the risk assessment which highlights Mr Elomar's personal associations as being the most salient area of risk."
6. A multitude of other psychological and psychiatric reports were tendered. To the extent possible, I have reviewed them (see s 25(3)(b)). In broad terms, they are not materially different to Dr Seidler's assessment, although Dr Seidler's assessment represents the culmination of a general improvement in the level of risk that the defendant can be seen as posing over recent years. For example, in a report dated 6 June 2018 (cited in Elomar (No 3)), psychiatrist Dr Kerry Eagle opined that if the defendant "were to continue to associate with convicted terrorists and those known to harbour violent Islamic extremist beliefs, his risk of committing a serious terrorism offence would be significantly elevated, when compared to the rest of the population".
7. The State also tendered a report prepared by the Terrorism (High Risk Offenders) ("THRO") psychology team dated 4 November 2020 (see s 25(3)(b)). This report suggested progress by the defendant in that he was assessed in the "low/moderate risk range specific to violent extremism, politically motivated violence or terrorism". However, the report noted that he still had significant vulnerabilities, especially concerning susceptibility to influence, including from family and friends. It was observed that: "It is noted, that there is substantial evidence to suggest that he has been involved with the religious leaders considered to endorse and promote religious extremism in the past. He has also previously attended at places within the community that are known to have accommodated and promoted extremist ideological discussions. Moreover, [the defendant] has been observed to access materials of interest (such as videos and documentaries related to Islamic State and Syria)."
8. That said, the report also noted that the defendant had not been observed to express an intention to commit an act of violent extremism and political violence or terrorism, or a willingness to prepare for such acts.
9. A Risk Management Report dated 30 November 2020 prepared by the THRO unit was also tendered (see s 25(3)(d)). It noted that the defendant's response to community corrections supervision had been largely positive. It proposed a risk management plan that involved his continuing at his present accommodation, supervision of the defendant, a focus on identified risks, needs and certain issues including antisocial peer associations and influence, and the members of the Corrective Services team working closely with the defendant to engage him in further education and training. As part of that process it is proposed that there would be a minimum of weekly face-to-face interviews with his community corrections enforcement officers, as well as monthly home visits by such an officer.
10. I have already referred to the defendant's criminal history (see s 21(3)(j)). The State submissions also refer to two instances where the defendant was charged with breaching his ESO, but the charges were dismissed (see s 25(3)(i)(iii)). Given the dismissal of charges, I do not attribute them any great weight in considering whether the defendant will comply with the obligations imposed on him. However, the material concerning one of the instances suggests that he has had some contact with a convicted criminal in November 2018 which is potentially of some significance given the reports noted above.
11. I note that there are currently outstanding charges against the defendant alleging that he breached his ESO by, inter alia, deleting data from his mobile phone which allegedly related to the conflict in Syria. I am told that these charges are due for trial in February 2021. The nature of the material that he is alleged to have deleted can be ascertained from a Crown Case Statement filed for the upcoming trial. As best as I can ascertain, the description of the material suggests that it involved mainstream reporting on the fate of ISIS and did not involve extremist propaganda. Otherwise, the State conceded that the defendant had been of good behaviour generally while subject to his ESO (see s 25(3)(i)), although a few incidents of antisocial behaviour are alleged. It suffices to state those matters do not affect the present assessment. Generally, the defendant has a reasonable record of compliance with his parole conditions.
12. This brings me to the heart of the application which concerns the defendant's susceptibility to influence by others and whether his associations give rise to an unacceptable risk. In its written submissions, the plaintiff's case for an ISO reduced to the contention that: "… whilst there is limited evidence that the [d]efendant would independently or proactively, plan or participate in any acts of violent extremism; that is not the risk which the State relies upon. Rather, it is the [d]efendant's susceptibility to influence by others which poses the risk."
13. Mr Lange submitted that, based on the matters alleged in the supporting documentation, it could not be demonstrated that absent supervision, the defendant posed the relevant risk. He pointed to the defendant's conduct while the subject of his current ESO and to Dr Seidler's reference to the defendant's commitment waning in the absence of his previous close and regular connections.
14. The competing contentions on this part of the case warrant scrutiny of what the supporting material indicates in relation to the defendant's connections with others who are, or may be, radicalised. I have referred above to those members of the defendant's family who are said to have some connection with terrorism. The State's submissions expressly disclaimed reliance on those associations as currently giving rise to a risk. However, the State relied on interactions between the defendant and other persons since 2018. Omitting the evidentiary references, that material was adequately summarised in the State's amended submissions as follows: Ibrahim Massri 106. The Defendant has associated with a Mr Ibrahim Massri in the period between 16 February and 28 February 2020 by sending and receiving 8 MMS messages, one SMS message and by receiving 3 missed calls … 107. Police hold intelligence that Mr Massri: a. holds 'strong religious views' and has 'demonstrated support for violent extremist ideology' …; b. was involved in recruiting ISIS fighters …; c. [deleted.] Edris Barez 108. The Defendant has associated with a Mr Edriz Barez on 30 June 2019 by exchanging 46 photographs and messages through the WhatsApp application (through the Defendant's wife's phone). … 109. Mr Barez is currently subjected to an ESO … During those proceedings, the Court, at the preliminary stage, accepted that Mr Barez supported Al‑Qaeda and had expressed an affinity with its terrorist ideologies, including the terrorist acts and violent extremism: State of NSW v Barez (Preliminary) [2019] NSWSC 1589 at [19] (per Fullerton J). At the final hearing, Mr Barez admitted that he was a Salafi and acknowledged that the Salafist ideology formed the foundation for groups such as ISIS and al‑Qa'ida: State of NSW v Barez (Final) [2020] NSWSC 555 at [72] (per Walton J) … 110. In addition, Mr Barez has a full‑sleeve tattoo saying Al‑Qaeda on his arm … In the proceedings leading to the ESO being imposed on Mr Barez, the Court accepted that this evidenced a 'clear expression of support for that organisation and, substantially, the terrorist acts and violent extremism, it has engaged in over a lengthy period.' State of NSW v Barez (Final) [2020] NSWSC 555 at [38] (per Walton J). Moawiya Holali 111. The Defendant has associated with Mr Moawiya Holali by sending a text message on 2 August 2020 … 112. Police intelligence reports indicate that: a. Mr Holali was found in possession of approximately 4,000 videos showing people engaged in attacks of violence and torture, human body mutilation and offences against deceased children … b. [deleted.] c. Unconfirmed intelligence indicates that Mr Holali collects money under the guise of charity and sends this money to extremists. His Facebook page describes being rewarded for martyrdom and has a reference to his son, stating 'may God place him and lead him to become a martyr in the future'. There is also a report that Mr Holali was involved in an attack on the Syrian embassy in Canberra in 2012 … d. Mr Holali was found to be in possession of a USB containing photos and videos of apparent terrorist training camp, and flag of Ahrar Al‑Sham, although, when questioned by police, he denied any extremist beliefs … Diaa Kara-ali 113. Between 15 September and 26 September 2018, the Defendant has sent and received text messages to and from a Mr Diaa [Kara-ali] … 114. Police hold intelligence that Diaa Kara‑ali is associated with the Diwan Al Dawla guild, which is a religious community …. Mr Kara-Ali has made threatening remarks to attending police … Abdul Alnimer, Ausamah Alnimer, Naderr Alnimer 115. The Defendant has associated with the Alnimer brothers; as they were involved at doing construction work at the Defendant's sister's residence which sits within the boundary fence of the Defendant's Denham Court Road property. The Defendant has also admitted to a Community Corrections Officer that the Alnimer brothers look after the Defendant's children and that they have family dinners together on Saturday nights … 116. An additional brother of the Alnimer brothers has fought in Syria for ISIS … In addition, on 22 October 2017, Mr Ausamah Alnimer was stopped by police and became aggressive … Oussama Benbrinka 117. The Defendant has associated with a Mr Benbrinka … In particular, between 24 April 2020 and 7 May 2020, the Defendant and Mr Benbrinka exchanged 36 multimedia messages and 74 text messages. Further, between 1 May 2020 and 4 May 2020 the defendant made two telephone calls to Mr Benbrinka, and Mr Benbrinka made two telephone calls to the defendant. 118. Mr Benbrinka is the son of Abdul Benbrinka, who is a convicted terrorist … On 8 June 2018, Mr Benbrinka was stopped by police in [a] vehicle with 3 others, during [a] search police located 3 copies of the Qur'an and two of them had bookmarks on pages that referred to 'killing Shiites' and 'enemies as livestock'. That vehicle was later seen stopping out the front of Dar Al Quran Wa Sunnah … Mazen Touma 119. There is available evidence that the Defendant was considering visiting Mr Mazen Touma in around 2017 … Mr Touma has been convicted of terrorism offences …"
15. To this summary, I note that from my review of the material, it appears that with the incident on 8 June 2018, another person who was in the car with Mr Benbrika claimed ownership of the Qur'an with the emphasised passages. Further, the material concerning the possible visit to Mr Touma noted at [119] of the State's submissions, reveals that in fact, the defendant considered making the visit, but of his own volition, decided not to follow through with it.
16. By way of contrast to this material, Mr Lange took the Court through case notes of the Department of Corrective Services which contained a number of entries suggesting an increase in the occasions at which the defendant expressed pro‑social views and which pointed towards his rehabilitation. In particular, Mr Lange submitted the material indicated that his rehabilitation would be adversely affected if another ISO or ESO were imposed and noted that was at least one of the objects of the Act (see s 3(2)). Consistent with this, there was also other material tendered, including a statement by a police officer concerning a recent and positive interaction with the defendant, as well as a report of a forensic psychologist from 2018 which was to similar effect.
17. I have outlined the State's primary submission above. In oral submissions, Senior Counsel for the State, Mr Emmett SC, accepted that the material concerning recent contact with extremist elements was limited and that there was countervailing material suggesting that the defendant was consciously avoiding such contact, and otherwise reporting in accordance with obligations. Mr Emmett SC nevertheless submitted that when the material concerning his associations is considered as a whole, along with the expert material and the evidence concerning non‑compliance with his reporting obligations, that the test, at least for the grant of an ISO, was made out.
18. In both his oral and written submissions, Mr Lange referred to the contacts described in the State's submissions above as "historical", a proposition I did not accept. He submitted that the nature of the interactions "appeared limited", a matter that is perhaps more accurate, although I notice that some of the instances involved bouts of intensive communication over a short period of time. As noted, Mr Lange pointed to the evidence of the defendant's pro-social behaviour and interactions with authorities, as well as what he described as his client's "scrupulous compliance" with his obligations. Thus, Mr Lange submitted that the statutory test was not made out.
19. In the end result, I return to the terms of s 20(d) and the over-riding purpose of the Act in s 3(1), specifically, "ensur[ing] the safety and protection of the community". The defendant's susceptibility to influence leaves him presenting a risk of committing a serious terrorism offence. Given the nature of serious terrorism offences, a risk of such an offence being committed does not have to be a very high risk for it to be "unacceptable". The degree and extent of the defendant's association with radicalised persons is sufficient to make it so in this case, although only just.
20. In terms of the position absent supervision, the defendant presents as the very type of person whose risk can be addressed by supervision. It is clear from the material that he is anything but a committed extremist. It follows that the matters alleged in the supporting documentation would, if proved, justify making the ESO. Accordingly, orders under s 23(5) and s 27 will be made.
21. One difficulty with the orders under s 23(5) is that the defendant is due to face trial in February 2021 on the charge of breaching his ESO. To avoid any infringement of his right to face a fair trial, I will order that the persons appointed be directed to refrain from asking the defendant about the subject matter of those charges. Further, for the avoidance of any doubt, it should be made clear the defendant is not under any obligation to answer any questions about that matter or otherwise address it in any explanation he chooses to give to the persons so appointed.

Conditions

1. Section 29(1) of the Act empowers the Court to direct an eligible offender to comply with such conditions that the Court considers "appropriate". Further, s 29(1A) of the Act provides that, unless the Court orders differently, an ESO or ISO must include certain specified conditions.
2. In relation to the imposition of conditions, Mr Lange submitted that emphasis should be given to his client's rehabilitation. Mr Lange submitted that any conditions which were not directly related to supervising his client's associations were likely to be counter-productive and thus not "appropriate". Whilst I do not consider that it is appropriate to limit the conditions imposed so that they only concern the defendant's associations, there is considerable force in Mr Lange's overall contention.
3. At the final of hearing this matter, if an ESO is to be made, particular attention will need to be focused on the form of conditions imposed to avoid them becoming oppressive and thereby jeopardising the substantial improvement in the defendant's risk profile and undermining both objectives of the Act to which I have referred. I suspect, but do not know that much will depend upon the outcome of the current charges that he faces.
4. The conditions originally sought to be imposed by the State include five that were not included in his current ESO. In the course of giving judgment, I was advised those five are not pressed. It is not necessary to consider them further.
5. In relation to the balance of the conditions, Part A are reporting and monitoring obligations. Given the risks that have been identified, they are clearly appropriate. Part B concerns accommodation. Part C concerns place and travel restrictions. Part D concerns employment and finance. Part F concerns non‑association. These conditions were either presumptively included by the operation of s 29(1A) or otherwise sufficiently related to the defendant's associations. Their imposition is appropriate.
6. Part H concerns weapons. Part I concerns the operation of vehicles and Part J concerns access to the internet and other electronic communications. Part L concerns access to extremist material. Mr Lange submitted that they were unrelated to the defendant's associations and were not appropriate. However, I consider they are all directed to the overall risk of what may ensue if the defendant does fall prey to an unfortunate association, namely, the commission of a serious terrorism offence. Thus, at least at this stage, they are appropriate. Parts K, M and N of the proposed conditions are ancillary to the provisions that I have identified. Accordingly, I will make an ISO in the terms sought.

Extent of Material

1. For some time, the Court has been endeavouring to reduce the material tendered on these applications, especially preliminary hearings. To that end, two matters about the Act should be noted. First, although there is undoubtedly a protective component to these proceedings, they are nevertheless adversarial and they are conducted in accordance with the civil standard. It is for the parties to agree on the facts, and it is incumbent upon the parties to select the material they seek to tender in order to demonstrate the facts they allege. Second, although s 23(3) requires that an application must be supported by certain documentation, it does not necessarily follow that all of that documentation has to be tendered at the hearing of an ISO or ESO.
2. Despite the efforts being made by the Court to streamline these proceedings, yesterday, nine folders and a flash drive of material were delivered to my chambers. Six folders were described as a Joint Tender Bundle. They are said to be only a selection of material that was annexed to the affidavits. Only a few of these documents were referred to in submissions. This approach to the provision of material wholly undermines the attempts that have been made to streamline these matters. It is inconsistent with the Civil Procedure Act 2005 which governs these proceedings, as well as various other obligations imposed on the State.
3. There are numerous means available to the State to conduct these cases without having to adopt this approach. When this material was sought to be tendered on the hearing, I received it provisionally. I indicated that I would reject the tender of those documents that were not referred to in the oral or written submissions. I now make that ruling. I will make an order requiring the plaintiff to prepare a revised exhibit setting out the documents that have been omitted in accordance with what I have stated.
4. Going forward, I will direct the State to adopt one of the means available to it to reduce the material that is required to be tendered, namely s 50 of the Evidence Act 1995. That provision enables the tender of a summary of voluminous evidence. The process of preparing such notices will force the State to identify in advance the facts it seeks to prove, rather than tendering a large amount of material, dumping it on the Court, and making submissions accordingly. My experience in these cases, and the current matter is no exception, is that it is likely that most matters of primary facts are to be agreed upon.
5. The Court makes the following orders: Interim Orders (1) An order pursuant to s 27 of the Terrorism (High Risk Offenders) Act 2017 ("the Act"), that the defendant be subject to an Interim Supervision Order commencing on 24 January 2021; (2) An order pursuant to s 28(1) of the Act, that the Interim Supervision Order be for a period of 28 days; and (3) An order pursuant to s 29(1) of the Act, directing that the defendant comply with the conditions set out in the schedule to this Order for the duration of the order specified at paragraph 2. Appointment of experts 1. An order pursuant to s 24(5) of the Act, appointing a qualified psychiatrist and a registered psychologist, as agreed by the parties, to conduct separate psychiatric and psychological examinations (as the case may be) 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; and directing the defendant to attend those examinations. (5) An order directing the appointed experts specified in paragraph 4.a. not to ask the defendant during the expert examinations specified in paragraph 4.a. any question about the subject matter of charge number H 73573985, listed for District Court trial in February 2021. (6) The parties are given liberty to approach the High Risk Terrorism Offender List Judge to obtain a date for the final hearing of the State's application and for case management orders. Restriction of access to file (7) An order 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 the Court. Further Orders (8) On or before 5.00pm Friday, 18 December 2020, the plaintiff is to file a separate copy of the material admitted on this application which will be marked as Exhibit "A". (9) On or before 21 February 2021, the plaintiff file and serve an affidavit from the solicitor with carriage of the matter: a. Identifying the efforts made to identify the facts sought to be proved by the documentary annexures and exhibits to the plaintiff's affidavits; b. Attaching draft notices under s 50(2) of the Evidence Act 1995 concerning that documentary evidence; and c. Specifying the number of folders of material that will need to be tendered at the final hearing of these proceedings if the Court (a) makes a direction under s 50(1) concerning those summaries; (b) does not make a direction under s 50(1) concerning those summaries. (10) Grant liberty to the plaintiff to apply to Beech-Jones J on two days' notice to seek directions under s 50(1) in respect of those notices.

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