State of New South Wales v Fayad - [2021] NSWSC 294 - NSWSC 2021 case summary — Zoe

NSWNSWSC

State of New South Wales v Fayad

[2021] NSWSC 294

Supreme Court of NSW|2021-02-26|Before: Wright J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2021-02-26

Before

Wright J

Catchwords

[2004] HCA 46 Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179
[2017] NSWCA 189 Khalid v R (2020) 102 NSWLR 160
[2020] NSWCCA 73 Lynn v State of New South Wales (2016) 91 NSWLR 636
R v Jibryl Almaouie

Source

Original judgment source is linked above.

Catchwords

[2004] HCA 46 Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179[2017] NSWCA 189 Khalid v R (2020) 102 NSWLR 160[2020] NSWCCA 73 Lynn v State of New South Wales (2016) 91 NSWLR 636R v Jibryl AlmaouieR v IMR v Mohamed Rashad Al Maouie

Judgment (59 paragraphs)

[1]

State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Minister for Home Affairs v Benbrika [2021] HCA 4 R v Alqudisi [2016] NSWSC 1227 R v Biber [2018] NSWSC 535 R v Musleh (No 5) [2018] NSWSC 1927 R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 State of New South Wales v Lawrence [2019] NSWSC 946 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 Xie v R [2021] NSWCCA 1 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Wassim Fayad (Defendant) Attorney General of New South Wales (Applicant on Terrorism Intelligence application) Representation: Counsel: J Emmett SC with A Mykkeltvedt (Plaintiff) S Prince SC with J Lucy (Defendant) P Singleton (Applicant on Terrorism Intelligence application)

[3]

Introduction

This case was not about religion in general or Islam in particular. This case was about Mr Wassim Fayad, the defendant, (also known as Fadi Alameddine and Abu Zakariyah) and whether the Court was satisfied that he, as an individual, posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an extended supervision order (ESO) made pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act).
As at 7 October 2020, the defendant was serving a seven year sentence of imprisonment, having pleaded guilty to a charge of aggravated break and enter with intent to commit a serious indictable offence. That sentence was due to expire on 28 November 2020.
On 7 October 2020, the State of New South Wales, the plaintiff, filed a summons seeking an ESO in respect of the defendant. A continuing detention order was not sought. In the summons, the State also applied for interim relief by way of an interim supervision order (ISO) and psychiatric and psychological examinations of the defendant.
On 25 November 2020, Johnson J imposed an ISO and made orders for the examination of the defendant: State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [292]. As a result of those orders, the defendant was examined by Dr Seidler, a forensic psychologist, and Dr Ellis, a forensic psychiatrist.
The ISO was renewed a number of times so that it was eventually due to expire at the end of 27 February 2021. No further renewal of the ISO was possible after that date, by virtue of s 28(7) of the THRO Act.
The final hearing of the matter extended over three days from 24 to 26 February 2021. In that hearing, the defendant conceded that the threshold requirements for the making of an ESO set out in s 20(a), (b) and (c) of the THRO Act were satisfied. That concession was, in my view, properly made. Accordingly, the only issue at the final hearing was whether, as required by s 20(d), the Court was: "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order".
On 27 February 2021, being so satisfied, I made the following orders: "1. Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of 2 years from the date of this order, or from when the defendant's current supervision expires, whichever is the later (the ESO). 2. Pursuant to s 29(1) of the Act, the defendant is to comply with the conditions set out in the schedule to this order for the duration of the ESO, subject to any variation of the conditions by the Court as a result of an application for variation made in accordance with order 3 of these orders. 3. The defendant has leave to apply to vary the conditions referred to in the preceding order 2 by filing and serving a notice of motion specifying the variations sought on or before 12 March 2021. 4. If a notice of motion is filed in accordance with preceding order 3: a. The defendant is to file and serve any evidence and submissions on which he relies in support of the notice of motion on or before 12 March 2021. b. The plaintiff is to file and serve any evidence and submissions on which it relies on or before 26 March 2021. c. The defendant is to file and serve any evidence and submissions in reply on or before 2 April 2021. d. The notice of motion is listed for hearing before Wright J on 6 April 2021. 5. Access to the Court's file in this proceeding, other than these orders, is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access."
The conditions referred to in order 2 are contained in the schedule attached to this judgment.
I now set out my reasons for making those orders in the paragraphs which follow.

[4]

Relevant statutory provisions and principles

The scheme established by the THRO Act for the making of extended supervision orders (ESOs) depends not only on that Act but also refers to certain provisions of the Criminal Code (Cth) (the Criminal Code). Accordingly, it will be necessary to refer in some detail to the applicable provisions of the THRO Act and to touch upon relevant offences and definitions in the Criminal Code.
The "primary object" of the THRO Act is, under s 3(1): "to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community".
"Another object" of the Act is provided in s 3(2) and that is to "encourage these offenders to undertake rehabilitation".
ESOs are dealt with in Pt 2, Divs 2.1 to 2.4, ss 19 to 26, of the THRO Act.
The Court's power to make an ESO is governed by s 20 which provides: "The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order."
A "serious terrorism offence" is defined in s 4(1) of the THRO Act to mean: "an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment".
Sections 21 and 25 of the THRO Act give further guidance as to how the Court is to go about its task under s 20. Section 21 establishes that, in order to determine that there is an unacceptable risk of the offender committing such a serious terrorism offence, the Court is not required to determine that such a risk is more likely than not.
Section 25(1) permits the Court to determine an application for an extended supervision order either: 1. by making an extended supervision order, or 2. by dismissing the application.
In determining the application, the Court is required by s 25(2) to treat the safety of the community as "the paramount consideration". Section 25(3) also contains a list of mandatory considerations for the Court, in the following terms: "(3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender's participation in any such examination, (b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence, (d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community, (f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender's participation in any such programs or initiatives, (g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (h) the likelihood that the offender will comply with the obligations of an extended supervision order, (i) without limiting paragraph (h), the level of the offender's compliance with any obligations to which the offender is or has been subject while: (i) on release on parole, or (ii) subject to a control order, or (iii) subject to an earlier extended supervision order or interim supervision order, or (iv) subject to any other order of a court, (j) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (l) any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities, (m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence."
Finally, s 25(4) renders any intention of the offender to leave New South Wales (whether permanently or temporarily) an irrelevant consideration for the purposes of determining whether to make an ESO.
If an ESO is made, s 26 of the THRO Act deals with the term or duration of the order. Section 26(1) specifies that an ESO commences when the order is made, or when the eligible offender's "current custody or supervision" expires, whichever is the later. "Current custody or supervision" is defined as meaning "the custody or supervision to which the offender is subject at the time of the application", in s 19 of the THRO Act.
As to expiration and suspension of an ESO, s 26(6) provides: "(6) An extended supervision order expires at the end of: (a) such period (not exceeding 3 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (7) An eligible offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law."
Section 29 provides for the imposition of conditions under an ESO. Section 29(1) contains a list of conditions with which a defendant may be required to comply under an ESO and s 29(1A) contains a list of conditions which must be included, unless the Court orders differently. Section 29(2) sets out definitions of some of the terms used. Section 29 is in the following terms: "29 Conditions that may be imposed on extended or interim supervision order (1) An extended supervision order or interim supervision order may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender to do any one or more of the following: (a) to permit any enforcement officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, (b) to permit any enforcement officer to access any of the following: (i) a computer or related electronic equipment that is at the offender's residential address or in the possession of the offender, (ii) data held within, or accessible from, the computer or related electronic equipment (including data accessible by means of an electronic identity), (c) to permit any enforcement officer to seize any computer or other object at the offender's residential address or in the possession of the offender for the purpose of enabling it to be forensically examined, (d) to use specified services or facilities, (e) to make periodic reports to an enforcement officer, (f) to notify an enforcement officer of any change in the offender's address, (g) to participate in intervention programs or initiatives, (h) to wear electronic monitoring equipment, (i) to reside at an address approved by an enforcement officer, (j) not to reside in or resort to specified locations or classes of locations, (k) not to associate or make contact with specified persons or classes of persons, (l) not to engage in specified conduct or classes of conduct, (m) not to engage in specified financial, property or business dealings (including not to enter into specified agreements or hold specified interests in connection with such dealings), (n) not to possess or use specified objects or substances, (o) not to engage in specified employment or classes of employment, (p) not to change the offender's name, (q) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, (r) to comply with specified requirements in connection with the offender's access to and use of the internet, (s) to provide any enforcement officer with information about any one or more of the following: (i) a carriage service used, or intended to be used, by the offender (including any telephone number used, or intended to be used, by the offender), (ii) an internet service provider or carriage service provider used, or intended to be used, by the offender, (iii) an internet connection used, or intended to be used, by the offender (including whether the connection is a wireless, broadband, Asymmetric Digital Subscriber Line (ADSL) or dial-up connection), (iv) an electronic identity used, or intended to be used, by the offender, (t) to provide any enforcement officer with requested information in relation to any employment or any financial affairs of the offender. (1A) Unless the Supreme Court orders differently (and without limiting the conditions that the Court may impose under subsection (1)), an extended supervision order or interim supervision order must include conditions requiring the eligible offender: (a) to submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements), and (b) to wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment, and (c) to live at an address approved by an enforcement officer and notify an enforcement officer of any intention to change the offender's address or living arrangements, and (d) not to leave New South Wales except with the approval of the Commissioner of Corrective Services, and (e) to submit to the search of the offender's person and residence and the search and seizure of the offender's vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the offender's control, and (f) to comply with rules or by-laws (or both) of any approved accommodation for the offender, and (g) not to use prohibited drugs, or obtain drugs unlawfully or abuse drugs lawfully obtained, and (h) to submit to drug and alcohol testing, and (i) not to possess or use any of the following: (i) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, (ii) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, (iii) a spear gun, (iv) an explosive substance intended, by the eligible offender, to be used in an explosive device, (v) a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the eligible offender, to be used as a fuse or detonator for an explosive device (as the case may be), and (j) to be available for interview at such times and places as an enforcement officer (or the officer's nominee) may from time to time direct, and (k) to undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an enforcement officer, and (l) not to start on the offender's own initiative any job, volunteer work or educational course without the approval of an enforcement officer, and (m) to obey any reasonable direction by an enforcement officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information), and (n) to permit an enforcement officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, and (o) to notify an enforcement officer of any intention to change the offender's employment if practicable before the change occurs or otherwise at his or her next interview with an enforcement officer, and (p) not to associate (including using third parties) with any person or persons specified by an enforcement officer, whether face to face or by written correspondence or electronic means, and (q) not to change the offender's name or use any other name without notifying an enforcement officer, and (r) not to frequent or visit any place or district specified by an enforcement officer. (2) In this section: carriage service, carriage service provider and internet service provider have the same meanings as in the Telecommunications Act 1997 of the Commonwealth. electronic identity means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service."
Finally, it can be noted that, under s 31 of the THRO Act, the Court may vary or revoke an ESO at any time on the application of the State or the person to whom it applies.
In the present case, there was no dispute that the defendant was an "eligible offender" and, as noted above, it was conceded by the defendant that the requirements in s 20(a), (b) and (c) were made out in the present case. Thus, the focus of the final hearing was upon the requirements in s 20(d) of the THRO Act, namely, whether the Court was: 1. satisfied to a "high degree of probability"; 2. that the defendant posed an "unacceptable risk"; 3. of committing "a serious terrorism offence".

[5]

"High degree of probability"

The requirement for the Court to be satisfied to a "high degree of probability" performs at least two functions. First, it confirms that the issue of whether the defendant poses an unacceptable risk is not to be resolved by mere speculation and, secondly, it effectively displaces the ordinary civil standard of proof, "on the balance of probabilities", with a higher standard, "to a high degree of probability": State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29]. The authorities that concern the same wording in other New South Wales high risk offender legislation establish that this higher standard is, however, lower than the criminal standard of proof of "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The defendant submitted that this requirement for the Court to be satisfied to a high degree of probability required there to be "acceptable, cogent evidence" of the matters to which the Court must have regard and that such evidence should permit the Court to reach the required degree of satisfaction. The defendant relied on the comment of Payne JA in Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [131] that "[t]he requirement in section 13 of the Dangerous Prisoners (Sexual Offenders) Act for there to be "acceptable, cogent evidence" before the Court is materially indistinguishable from the requirement in the [Crimes (High Risk Offenders) Act] for the Supreme Court to be satisfied 'to a high degree of probability'". It was further submitted that particular pieces of evidence, for example intelligence reports and OIMS notes, did not meet the description "acceptable, cogent evidence" and thus the Court should not take that material into account in determining whether it was satisfied to a high degree of probability that the defendant posed a relevant risk.
This submission was not, and should not be, accepted. In Kamm at [131], Payne JA was considering whether certain features of the Crimes (High Risk Offenders) Act 2006 (NSW) were sufficiently different from the Queensland high risk offender legislation considered by the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 so that it could be concluded that the Crimes (High Risk Offenders) Act, unlike the legislation in Fardon, was constitutionally invalid because it impaired the institutional integrity of the Supreme Court of New South Wales so as to be incompatible with the Court's position as a potential repository of federal judicial power. The legislation in Fardon provided that the satisfaction of the Supreme Court of Queensland "that the appellant [in that case] is a serious danger to the community could be attained (s 13(3)): "only if it is satisfied - (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision."
At [131] to [134], Payne JA said: "131. The requirement in s 13 of the Dangerous Prisoners (Sexual Offenders) Act [the Queensland legislation referred to in Fardon] for there to be "acceptable, cogent evidence" before the Court is materially indistinguishable from the requirement in the High Risk Offenders Act for the Supreme Court to be satisfied "to a high degree of probability" that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision: s 5B(2). 132. It is within the competence of a State Parliament to design a scheme that reverses the onus of proof: Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 at [240] per Crennan, Kiefel, Gageler and Keane JJ. Section 5B(3) does not reverse the onus of proof but provides that the Supreme Court is not required by s 5B(2) to determine that the "risk" of the person committing the offence is more likely than not when considering whether there is an "unacceptable risk of [the person] committing a serious offence". It will be recalled that the Dangerous Prisoners (Sexual Offenders) Act requires a state of satisfaction that there is "a serious danger to the community in the absence of a division 3 order". That Act was silent about the "risk" of the person committing an offence. 133. The High Risk Offenders Act is similarly materially indistinguishable from the Dangerous Prisoners (Sexual Offenders) Act in relation to the onus of proof. In the former case it is clear that the State bears the onus of proving that an offender poses "an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision": ss 5H; 6; 9; 21; and see Donovan at [23]. In the latter case, the Attorney-General also bore an onus of proving the prisoner was a "serious danger" to the community: s 13. 134. So understood, the requirements of the Dangerous Prisoners (Sexual Offenders) Act considered in Fardon and the material provisions of the High Risk Offenders Act are not relevantly distinguishable. The identification of that standard of proof in s 5B(3) in relation to the subject matter of that sub-section, the risk of committing an offence, does not impermissibly intrude into the processes or decisions of the Supreme Court so as impair its institutional integrity or be incompatible with the Court's position as a potential repository of federal judicial power."
Payne JA was only stating that, for the purpose of considering the constitutional validity of the Crimes (High Risk Offenders) Act, the provisions in s 5B of that Act were "materially indistinguishable from" s 13 of the Queensland legislation held to be valid in Fardon. His Honour was not establishing a principle that the wording of s 5B was to be construed as incorporating the different wording and concepts found in s 13 of the Queensland legislation.
The relevant requirements of s 5B of the Crimes (High Risk Offenders) Act use substantially the same form of words as the requirement in s 20(d) of the THRO Act. Section 20(d) does not contain a requirement that the Court's satisfaction must be based on "acceptable, cogent evidence". Indeed, by operation of ss 25(3), 50, 58, 59 and 61 of the THRO Act, the Parliament has prescribed the types of evidence that will be admissible on an application under the THRO Act, subject to s 50(2) of that Act. The acceptability or cogency of that evidence was to be considered in light of the fact that the Court was not required to place any particular weight on any part of the material admissible under those provisions of the THRO Act and could take into account the fact that it had not been tested by cross-examination, or that it contained hearsay, irrelevant material or non-expert opinion evidence. In addition, the Court had power to limit its use by making an order under s 136 of the Evidence Act 1995 (NSW).
Accordingly, the weight to be given to the items of evidence in the present case was given serious consideration. That evidence was not, however, disregarded simply because it might not fall within the meaning of "acceptable, cogent evidence" found in the Queensland high risk offender legislation considered in Fardon.

[7]

"A serious terrorism offence"

The risk that the Court is required to assess is the future risk of the defendant committing a "serious terrorism offence".
In s 4(1) of the THRO Act, "serious terrorism offence" is defined as meaning: "an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment".
Offences in Part 5.3 of the Criminal Code which fall within the definition of "serious terrorism offence" in the THRO Act were usefully summarised by Johnson J in his Honour's preliminary judgment in this matter, State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [35], as including: "engaging in a terrorist act (s.101.1 Criminal Code (Cth), noting the extended definition of "terrorist act" in s.100.1); providing or receiving training connected with terrorist acts (s.101.2); possessing things connected with terrorist acts (s.101.4); collecting or making documents likely to facilitate terrorist acts (s.101.5); doing acts in preparation for, or planning, a terrorist act (s.101.6); directing the activities of a terrorist organisation (s.102.2); membership of a terrorist organisation (s.102.3); recruiting for or participating in the activities of a terrorist organisation (s.102.4); training involving a terrorist organisation (s.102.5); getting funds to, from or for a terrorist organisation (s.102.6); and providing support to a terrorist organisation (s.102.7)".
"Terrorist act" is relevantly defined in s 101.1(1) of the Criminal Code as follows: "terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public"; and subss (2) and (3) provide: "(2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public.
In s 102.1(1) of the Criminal Code: 1. "recruit" is defined as including "induce, incite and encourage"; 2. "terrorist organisation" is defined as meaning: "(a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4))".
Islamic State and Jahbat Al Nusra, in various emanations, are organisations specified for purposes of par (b) of the definition of terrorist organisation in s 102.1(1): see for example Criminal Code (Terrorist Organisation - Islamic State) Regulations 2020 (Cth) and Criminal Code (Terrorist Organisation - Jabhat Fatah al-Sham) Regulations 2019 (Cth).
Section 11.2 of the Criminal Code extends the range of potential serious terrorism offences. That section provides: "(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. (2) For the person to be guilty: (a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and (b) the offence must have been committed by the other person. (3) For the person to be guilty, the person must have intended that: (a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or (b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed. (3A) Subsection (3) has effect subject to subsection (6). (4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person: (a) terminated his or her involvement; and (b) took all reasonable steps to prevent the commission of the offence. (5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty. (6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1). (7) If the trier of fact is satisfied beyond reasonable doubt that a person either: (a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or (b) is guilty of that offence because of the operation of subsection (1); but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence."
From the terms of s 11.2, it follows that if, for example, a person counsels or procures the commission by another of an offence against Pt 5.3 of the Criminal Code that carries a maximum penalty of seven years or more, and the other requirements of s 11.2 of the Code are met, the person is taken to have committed "that offence", which will be a "serious terrorism offence" within the meaning of the THRO Act. In other words, aiding, abetting, counselling or procuring a serious terrorism offence is also a serious terrorism offence.

[8]

The State's evidence

The State's evidence in this matter fell into the following categories: 1. intelligence reports contained in the confidential exhibits (Ex MSW1, Ex MSW2 and Ex MSW3) which were the subject of a terrorism intelligence application under Div 5.3 of the THRO Act; 2. other documents provided in response to a requirement under s 58 of the THRO Act or a request under s 59 including: 1. NSW Corrective Services Probation and Parole Service Offender visits 22 October 2020; 2. NSW Corrective Services OIMS Personal Details Report: Ali Al-Talebi; 3. NSW Corrective Services OIMS Case Note Reports dating from 22 April 2013 to 23 August 2020; 4. NSW Corrective Services OIMS Case Note Reports dating from 22 October 2020 to 7 December 2020; and 5. an inmate misconduct report dated 30 October 2020; 1. documents provided under ss 58 and 59 including reports relating to matters to which the Court must have regard under s 25(3) of the THRO Act such as: 1. Expert Report of Dr Katie Seidler, clinical and forensic psychologist, dated 29 January 2021; 2. Supplementary Expert Report of Dr Katie Seidler, dated 11 February 2021; 3. Expert Report of Dr Andrew Ellis, forensic psychiatrist, dated 27 January 2021; 4. Supplementary Expert Report of Dr Andrew Ellis, dated 19 February 2021; 5. Expert Report of Ms Chelsey Dewson, forensic psychologist, dated 28 September 2020; 6. Expert Report of Prof Greg Barton, Deakin University Professor and Research Chair, dated 19 January 2021; and 7. Expert Report of Dr Mariam Farida, UNSW Middle East Expert, dated 22 September 2020; 1. affidavit evidence: 1. Affidavit of Senior Constable Danny El Helou sworn 14 September 2020; 2. Affidavit of Detective Sergeant Matthew Schenke sworn 14 October 2020; 3. Affidavit of Amay Tembe affirmed 8 October 2020, accompanied by Annexures B and C being the Certificates of Conviction of Messrs Ali Al-Talebi and Hamdi Alqudsi; 4. Two affidavits of Kate James sworn 27 October 2020 and 21 January 2021; and 5. Affidavit of Gabrielle McPherson affirmed 22 January 2021. 1. Video and audio recordings on USBs: 1. one audio conversation of a 6 minute and 46 second telephone call from Tuki Lawrence to Mariam Tangaroa; 2. two videos relating to the 2012 protest in the Sydney CBD: 1. A 15 second Channel 9 video clip showing Islamic protestors and a large group of police; and 2. An 8 minute and 38 second Channel 10 video clip showing Islamic protestors speaking into a megaphone in and around the Hyde Park area; and 1. one video of 2 hours, 45 minutes and 1 second of a visit at Goulburn Gaol involving the defendant and four other men (Messrs Khalid, Al-Talebi, Salihy and Osman) on 2 November 2014. 1. Other documents provided under ss 58 and 59 or material relating to matters to which the Court must have regard under s 25(3) of the THRO Act including: 1. A NSW Corrective Services log of Offender Visits dated 22 October 2020; 2. An OIMS Personal Details Report for Ali Al-Talebi; 3. A NSW Corrective Services Visitor Details Report dated 21 October 2020; 4. NSW Corrective Services document containing classification history details and punishment details for the defendant dated 16 July 2020; 5. A Telstra phone bill for the defendant issued on 16 November 2013; 6. A statement of agreed facts from the NSW District Court proceedings for the defendant's Index Offences; 7. The portion of the remarks on sentence of Woodburne DCJ containing the imposition of the sentence of seven years' imprisonment upon the defendant; 8. Extracts from Transcript of ERISP given by the defendant on 19 July 2011; 9. Police photographs of Mr Cristen Martinez's back, side and hand injuries following the 2011 "whipping" offence; 10. Extracts from the Examination in Chief of Mr Martinez in Burwood Local Court; 11. Decisions of R v Zakaryah Raad, Fadi Alemaddin (aka Wasim Fayad), Tolga Cifci, Gengiz Coskun before Maloney LCM in the Burwood Local Court; 12. Extracts from the Witness Statement of Jaemi Templeton on 3 December 2013 in the matter of NSW Police v Fayad; 13. Judgment of R v Fred Toufic Alemaddin aka Wassim Fayed before Bennett DCJ in the District Court on appeal from the Local Court; 14. An information report summary titled "Suspected Sourcing and Possession of Firearms" involving four persons of interest suspected of being involved in the supply of firearms: Wassim Fayad; Rabbie El Achwah; Dennis Tervoski; and, Mirwais Danishyar; 15. A NSW Police Intelligence Information Report summary titled "Information re Sourcing of Firearms" citing the defendant as a person of interest; 16. A NSW Police Intelligence Information Report summary titled "Possible Firearms Possession and Sale" involving the defendant; Rabbie El Achwah; Dennis Tervoski; and, Mirwais Danishyar; 17. Property seizure record contained in the statement of Senior Constable Mehmet Sagkol of the defendant's premises; 18. Statement of Acting Sergeant James Short dated 19 December 2013 regarding the details of when he attended at the defendant's premises; 19. Statement of Plain Clothes Senior Constable Joshua Patch dated 12 March 2020; 20. An extract from the defendant's Offender Intake Data Form containing material regarding his family background and domestic circumstances; 21. Letter to R McNair, Manager of Security at Goulburn Correctional Centre, dated 24 September 2014, concerning the defendant's activities recruiting and/or preaching his beliefs to other inmates; 22. Letter from Mr Michael Weston, dated 24 September 2014, headed "Incident Report" involving the defendant placing pressure on certain inmates in the yard; 23. Review of Segregated Custody initial report prepared by Mr Larry Bolger, General Manager of Goulburn Correctional Centre, recommending that the defendant's segregated custody direction, which had initially commenced on 24 September 2014, continue, and that the inmate continued to be detained in isolation from all other inmates; 24. An Incident Report from Mr A.R Dennington, a Senior Correctional Officer, dated 20 February 2015; 25. Letter from Mr Larry Bolger, General Manager Goulburn Correctional Cluster, regarding an incident in 13 Yard, in which the defendant was identified, inter alia, as a key person in the incident; 26. Inmate misconduct report from Mr Timothy Price, of NSW Corrective Services, of the defendant's involvement in an incident on 5 January 2018; 27. Confidential PRISM Assessment Report for the defendant dated 12 November 2018; 28. Extracts from Offender Visits for the defendant, from 24 February 2014 to 14 February 2015; 29. Extract from a transcript of a telephone call between the defendant and Mr Zackaryah Alameddine on 17 May 2019; 30. Extract from a transcript of a telephone call between the defendant and Maysa Alameddine on 16 January 2020; 31. Extracts from a transcript of a telephone call between the defendant and Zakariya Alameddine on 24 February 2020; 32. Extract from a transcript of a telephone call between the defendant and Saarah Alameddine on 22 March 2020; 33. Extracts from a NSW Corrective Services Intelligence Report, dated 2 January 2014, regarding the defendant's observed conduct in one of the prison yards, speaking to inmates in a group, only for the group to disperse once Corrective Services personnel approached; 34. NSW Corrective Services Intelligence Report, dated 4 August 2014, regarding observations by Corrective Services personnel of the defendant attempting to convert both inmates and identified staff to the Islamic faith; 35. NSW Corrective Services Intelligence Report, dated 12 September 2014, regarding the defendant's conversion of certain inmates to the Islamic faith; 36. NSW Corrective Services Intelligence Report dated 9 December 2014 regarding a telephone conversation the defendant had with Mr Mohamed Osman on 9 December 2014; 37. NSW Corrective Services Intelligence Report, dated 20 February 2015, regarding an incident in one of the prison yards involving chanting and yelling, after which the defendant was identified as a key person and placed in segregated custody; 38. NSW Corrective Services Intelligence Report, dated 22 November 2015, regarding the defendant's attempts to convert certain inmates to the Islamic faith and offer them Islamic teachings; 39. Extracts from NSW Corrective Services Intelligence Report, dated 29 March 2016, one of which contained a handwritten note providing advice and directions on elements of the Islamic faith; 40. Extracts from NSW Corrective Services Intelligence Report, dated 31 May 2018, regarding the offering of religious books to the defendant's son, which were being stored at Mr Al Safi's residence; 41. NSW Corrective Services Intelligence Report, dated 20 November 2019, regarding an incident involving religious books in the facility being thrown out and subsequent "protests" by inmates; 42. Extracts from NSW Corrective Services Intelligence Report dated 10 December 2019 regarding threats made by various inmates, including the defendant, intended for the A/Governor and A/Manager of Security at HRMCC; 43. Letter from Milad Al-Ahmadzai to Bassam Hamzy, dated 22 September 2015, informing him that since the defendant had been in custody, between 50-70 people had accepted Islam by his efforts; 44. Letter from Mr Bourhan Hraichie to the defendant dated 5 June 2016; 45. Letter from the defendant to Bourhan Hraichie dated 17 June 2016; 46. Letter from Bourhan Hraichie to the defendant dated 21 June 2016; 47. Letter from the defendant to Maywand Osman dated 18 November 2016; 48. Letter from Bourhan Hraichie to the defendant dated 10 December 2016; 49. Letter from the defendant to Bourhan Hraichie dated 24 December 2016; 50. Letter from the defendant to Bourhan Hraichie dated 28 December 2016; 51. Extracts of a letter from the defendant to Manager of Security containing his views as to Parole and PRISM; 52. NSW Corrective Services Communication Review regarding a telephone call from the defendant to Zaraiya Alameddine on 17 May 2019; 53. Extracts from a pre-release report prepared by Mr Brett Bannerman, Acting Manager of Goulburn Community Corrections Office, dated 23 July 2018; 54. Extracts from JCTT Covering Summary Report regarding the defendant's identification as a primary person of interest in several operations investigating foreign incursion offences and terrorist offences; 55. Extracts from the determination of the State Parole Authority, dated 11 December 2018, refusing the defendant parole; 56. Extracts from the pre-release report prepared by Mr J Buck, dated 30 September 2019, including factors related to the defendant's offending and his conduct in custody; 57. State Parole Authority response to memorandum dated 29 June 2020; 58. Judgment of R v Alqudisi [2016] NSWSC 1227; 59. JCTT Operational Threat Assessment for the defendant dated 22 August 2018; 60. JCTT Intelligence Report, dated 23 August 2018, recommending that the defendant be denied Parole owing to the unacceptable risk he poses to the community; 61. Extracts from an Intelligence Report, dated September 2014, regarding the defendant ideological stance on Shia Muslims; 62. Extracts from Intelligence Report, dated August 2013; 63. Extracts from Intelligence Report, dated January 2014, regarding information about the conversion of certain inmates to the Islamic faith; 64. Extract from an Intelligence Report dated August 2015; 65. Sydney District Court Conviction Certificate of Ahmad Naizmand dated 13 May 2020; 66. Federal Court Conviction Certificate of Ahmad Naizmand dated 25 June 2020; 67. Federal Circuit Court Conviction Certificate of Ahmad Naizmand dated 25 June 2020; 68. Federal Court Conviction Certificate of Maywand Osman dated 5 October 2020; 69. Supreme Court of NSW Certificate of Conviction of Bourhan Hraichie, dated 7 October 2020; 70. Supreme Court of NSW Certificate of Conviction of Milad Atai, dated 7 October 2020; 71. Supreme Court of NSW Certificate of Conviction of Raban Alou, dated 8 October 2020; 72. Judgment of DPP v Raad, Cifci, Cozkun and Fayad proceeding at Central Local Court before Maloney LCM; 73. Judgment of R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365; 74. Judgment of R v Biber [2018] NSWSC 535; 75. Criminal History - Bail Report of Hamdi Alqudsi, dated 8 October 2020; 76. Criminal History - Bail Report of Ali Al-Talebi, dated 8 October 2020; 77. Criminal History - Bail Report of Bourhan Hraichie, dated 8 October 2020; 78. Extract from ERISP Transcript of Interview with Hourhan Hraichie, dated 7 April 2016, containing information about the killing of Muslims; 79. Extract from ERISP Transcript of Interview with Bourhan Hraichie, dated 13 September 2018, containing information about the "whipping" offence as well as Mr Hraichie's "Abu" name of Abu Hunayn; 80. Extracts from Transcript of Surveillance Listening Device installed in cell of Tukiterangi Lawrence dated 6-7 May 2019; 81. Extract from Investigator's Note: Analysis of Mobile Phone seized from Tukiterangi Lawrence, dated 23 April 2019, containing messages regarding arrangements with another person for the selling of quantities of methylamphetamine and also the possession of firearms; 82. Extracts from Conviction, Sentences and Appeals Report, dated 21 December 2020, for the defendant; 83. Extract from OIMS Case Notes, dated 22-23 October 2020; 84. Extract from Transcript of Audio of a telephone conversation made by Tukiterangi Lawrence to Mariam Tangaroa dated 14 November 2020; and 85. Supreme Court of NSW Certificate of Court Result for Tukiterangi Lawrence; 86. Summary titled "Plaintiff's Factual Allegations Re Associates"; 87. Supreme Court of NSW Certificate of Court Result for Mr Mayward Osman, dated 25 February 2021; and 88. Plaintiff submissions and extracts of telephone intercepts between the defendant and Mr Alqudsi between 13 June 2013 and 7 November 2013.
None of the State's witnesses who were cross examined was effectively challenged as to the truth or reliability of their evidence. Where a mistake, of no substantial significance, had been made it was readily conceded. Their evidence was properly qualified where appropriate. Overall, I formed the view that the evidence of these witnesses should generally be accepted. Where the State relied on documentary evidence whose authors could not be cross examined, my general conclusion was that it was admissible by virtue of ss 61 and 25(3) of the THRO Act but the weight that ought to be given to the material varied markedly depending on the nature of the information and the circumstances in which the documentation was apparently created.
It is appropriate to set out briefly here my reasons in relation to the evidentiary objections of general application that arose in these proceedings. In this regard, it can be noted that Johnson J in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 dealt with objections to the admission of certain judgments under s 91 of the Evidence Act 1995 at [63] to [80]. I gratefully adopted his Honour's conclusions and reasoning, so far as they continued to be applicable in the final hearing before me, and it is not necessary to repeat here Johnson J's comments. I specifically note, however, that I agreed that limited weight should be given to the part of Bellew J's judgment in R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 identified at [76] and [79] of Johnson J's judgment and I adopted a similar approach when considering challenged portions of other judgments in matters in which the defendant was not a party and for which there was no independent evidentiary support.
Other particular evidentiary rulings were made during the hearing and are not dealt with in these reasons beyond what is set out in the paragraphs which follow.

[9]

Terrorism intelligence

The terrorism intelligence in the confidential exhibits was the subject of a terrorism intelligence application determined at the commencement of the hearing on 24 February 2021. The orders made on that occasion were as follows: "The Court orders until further order that in respect of the following documents, and the contents of those documents: (a) AFP Information Report 1053331; (b) NSW Police Force Information Report I 578123377; (c) CSNSW Information Report IR-15-0653 (d) Confidential Affidavit of Mark Steven Walton of 22 February 2021. Access is granted only on the basis that: 1. The documents at (a)-(d) above, and the contents of those documents, will not be disclosed to any person except for the following: i. The Supreme Court and staff; ii: Those representing the plaintiff in these proceedings; iii. Those representing the defendant in these proceedings; iv. The Commissioner of Corrective Services, the Commissioner of NSW Police, the Commissioner of the AFP or personnel employed by these agencies performing duties relevant to these proceedings and the legal representatives instructed by these agencies in these proceedings; v. Any expert engaged for the purpose of these proceedings. 2. For the avoidance of doubt, it is a term of this order that the documents at (a)-(d) above, and the contents of those documents, will not be disclosed to the defendant and the defendant is not permitted any form of access to those documents or knowledge of the contents of those documents. 3. Any submissions or evidence about, based on or referring to the documents at (a)-(d) above, or their contents, is to be made or given in closed court." and further it was ordered that: 1. There shall be no disclosure of submissions made or evidence adduced during the closed court hearing in relation to the terrorism intelligence application until further order of the Court and this order applies throughout the Commonwealth of Australia."
There was no dispute that the terrorism intelligence application was made by the Attorney General under s 59A of the THRO Act which relevantly provides: "The Attorney General … may: (a) make an application (a terrorism intelligence application) to the Supreme Court in any proceedings before the Court under this Act (the substantive proceedings) for particular information to be dealt with as terrorism intelligence in those proceedings, and (b) request that the Supreme Court take steps under section 59C to maintain the confidentiality of the information while the Court is considering whether to grant the application. (2) The Supreme Court must grant a terrorism intelligence application if the Court is satisfied that: (a) the information to which the application relates was provided to the Attorney General under Division 5.2, and (b) the information is terrorism intelligence."
The nature of such an application and the principles to be applied were helpfully set out in Johnson J's judgment in State of New South Wales v Lawrence [2019] NSWSC 946. I gratefully adopt, without repeating here, his Honour's analysis and reasoning generally except for one matter that I address below.
Given the nature of the information and the circumstances of its production to the Attorney General, it was accepted that the information to which the application related was provided to the Attorney General under Div 5.2 of the THRO Act. Accordingly, if the Court was satisfied that the information was "terrorism intelligence", it was required by s 59A(2) to grant the application.
"Terrorism intelligence" is defined in s 4(1) to mean: "information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected: (a) to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or (b) to prejudice criminal investigations or investigations by intelligence agencies, or (c) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or (d) to endanger a person's life or physical safety."
It is not appropriate in these reasons to identify in specific terms the material which was the subject of the application in the present case. It is sufficient to note that they were intelligence reports compiled by officers of the Australian Federal Police, the New South Wales Police and New South Wales Corrective Services responsible for gathering and analysing intelligence including intelligence in relation to the commission and prevention of terrorist acts which contravene the criminal law.
In State of New South Wales v Lawrence at [54], Johnson J expressed the view that the New South Wales Police Force and New South Wales Corrective Services were "intelligence agencies" for the purposes, among others, of par (a) of the definition of "terrorism intelligence". It was not necessary for me to decide this point, since I was satisfied that all of the bodies whose reports were the subject of the application before me were "bodies involved in the prevention of terrorist acts", as referred to in par (a).
Having regard to the evidence of Assistance Commissioner Walton of the New South Wales Police in both his open and his confidential affidavits and the contents of the intelligence, I was satisfied of the matters in pars (a), (c) and (d) of the definition of "terrorism intelligence". Accordingly, I was required to grant the application. The nature of the orders made, in order to give effect to that conclusion, reflected the protection needed given the nature and contents of the reports.
Since the terrorism intelligence was contained in documents provided under s 58 of the THRO Act, my reasons for admitting these documents into evidence in the substantive proceedings were effectively the same as those which are set out below in relation to the other documents provided under that section.

[10]

Documents provided under ss 58 and 59 of the THRO Act

The THRO Act contains s 61 which has the effect of rendering documents that have been provided to the Attorney General under Pt 5 of the THRO Act admissible, even though those documents would, or might, not otherwise be admissible under the Evidence Act in civil proceedings.
Division 5.2 of Pt 5 of the THRO Act contains ss 58 and 59, which permit the Attorney General to require or request the provision of "offender information". Sections 58 and 59 are in the following terms: "58 Requirement to provide offender information to Attorney General (1) The Attorney General may in the circumstances prescribed by the regulations, by order in writing served on a person, require that person to provide the Attorney General with offender information of a kind prescribed by the regulations that is in the person's possession or under the person's control. (2) A person on whom an order has been duly served must comply with the order. Maximum penalty (subsection (2)): (a) in the case of a corporation - 100 penalty units, or (b) in the case of an individual - 100 penalty units or imprisonment for 2 years (or both). 59 Request to provide offender information to Attorney General The Attorney General may request: (a) a court to provide any offender information to the Attorney General that is held by the court, or (b) a person in another Australian jurisdiction to provide offender information that is in the person's possession or under the person's control."
"Offender information", as referred to in each of these sections, is defined in s 57 as meaning: "any document, report or other information that relates to the behaviour, beliefs, financial circumstances, or physical or mental condition, of an eligible offender, and includes terrorism intelligence about the offender".
"[T]he circumstances prescribed by the regulations" referred to in s 58 are those set out in cl 6 of the Terrorism (High Risk Offender) Regulation 2018 (the THRO Regulation). These circumstances include that the Attorney General may only require offender information: 1. from the "compellable persons" listed in cl 6(2); and 2. if the offender information is of a kind referred to in cl 7.
For the purpose of identifying the relevant offender information referred to in cl 6, cl 7(1) of the THRO Regulation contains a list of specific records, reports and documents concerning identified subject matters. Further, cl 7(2) provides in effect that the Attorney General can require the provision of only "pre-existing documents".
Material provided in response to a requirement or request under s 58 or s 59 becomes admissible by virtue of s 61 (which is also in Pt 5 of the THRO Act). Section 61 states: "Any document or report (or a copy of a document or report) provided to the Attorney General under this Part is admissible in proceedings under this Act despite any Act or law to the contrary."
Much of the State's evidence was tendered on the basis that it was admissible under s 61.
Sections 58, 59 and 61 operate, however, in the context of other provisions of the THRO Act including, most significantly, s 50 which provides: "(1) Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. (2) To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence."
The interaction of these provisions was considered by the Court of Appeal in Lawrence v State of New South Wales [2020] NSWCA 248 (Lawrence). At [39] to [41], the Chief Justice made the following comments (with which Bell P and Leeming JA agreed): "39. I agree that s 50(2) is obscure. It seems to me that it applies to material admitted under s 61 and material to which the Court is required to have regard by virtue of s 39. Whilst the Court may be required to admit the material, it seems to me the effect of the section is to make it clear that after having had regard to it, if the Court concludes that it is irrelevant no further account need be taken of it. As was accepted by senior counsel for the appellant, in assessing the material the Court can exercise its general discretion to limit the use of the evidence under s 136 of the Evidence Act. Further, it would seem to me that if a report or other assessment purporting to be an expert report was not based on specialised knowledge, the Court having considered it would be entitled to disregard it as inadmissible opinion evidence. 40. It is unnecessary to give further examples. However, it seems to me that the purpose of s 50(2) is to limit the use to be made of the classes of documents falling within s 61 and s 39 to the extent they would be irrelevant or would have little or no probative value in civil proceedings conducted in accordance with the rules of evidence. 41. Senior counsel for the appellant also submitted that the preservation of the right to cross-examine contained in s 54 of the [THRO] Act did not impose an obligation to call a person whose report was required to be taken into account under s 39(3) or admissible under s 61. That is correct. However, in considering the weight to be placed on a report, the Court can take into account the fact that it was not tested, particularly if the applicant for the detention order declined to present the author for cross-examination."
Further, at [78], Bathurst CJ said: "… Although the Court is at least implicitly required to admit material falling within s 39(3), and expressly required to admit material falling within s 61, the Court is not required to place any particular weight on any part of that material and could take into account the fact that it has not been tested by cross-examination, or that it contains hearsay, irrelevant material or non-expert opinion evidence. In addition, the Court has power to limit its use by making an order under s 136 of the Evidence Act. That the Court retains these powers in my opinion is made clear by s 50(2) of the Act. Further, leaving aside the question of terrorism intelligence, it is open to the person against whom the order is sought to make submissions as to the use that can be made of such material and its evidentiary value."
These passages establish that documents provided to the Attorney General under s 58 or s 59 are to be admitted into evidence under s 61 but the Court must consider carefully the weight to be placed on the information in those documents. If, for example, the information is irrelevant, is hearsay, cannot be tested by cross-examination, is non-expert opinion evidence or is expert opinion evidence based on factual assumptions which have not been otherwise established, it may deserve reduced or no weight.
In addition, the Court can limit the use to be made of the evidence admitted under s 61 of the THRO Act as provided in s 136 of the Evidence Act.
In the present case, the defendant did not contend that any particular document tendered under s 61 of the THRO Act was not a document or report provided to the Attorney General under Pt 5 of the Act. Rather, Mr Prince of Senior Counsel, who appeared with Dr Lucy for the defendant, contended in relation to a substantial number of documents tendered by the State that although they might be admissible under s 61, they should not be admitted as their probative value was substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party within s 135 of the Evidence Act or that, in some cases, their use should be limited under s 136.
Since no specific submissions were made as to whether s 135 of the Evidence Act applied in respect of evidence expressly rendered admissible by s 61 of the THRO Act, I considered the defendant's submissions on the basis that s 135 could apply in the circumstances. There did, however, appear to me to be a potential difficulty in holding that s 135 could operate to allow the Court to refuse to admit the documents properly tendered under s 61. Section 61 renders the evidence admissible. Section 50(2) of the THRO Act expressly provides "[t]o avoid doubt" that a provision such as s 61 "does not affect any rule of evidence with respect to the … probative value of the document, report or other information once it is admitted into evidence" (emphasis added). Thus, as the passages from Lawrence quoted above accept, s 136 of the Evidence Act can apply to evidence admitted under s 61. This is so because s 136 permits the Court to limit the use of evidence once it has been admitted. Section 135, however, only empowers the Court to refuse to admit evidence or a document and therefore is unlikely to apply "once it is admitted into evidence".
Having regard what was argued before me, I was in any event of the view that the probative value of the documents to which objection was taken under s 135 was not substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. In this context, "unfairly prejudicial" directs attention to risk or harm that evidence may be misused in some unfair way by the tribunal of fact: The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [73]; Xie v R [2021] NSWCCA 1 at [782]. In the present case, the tribunal of fact was a judge with the benefit of submissions from experienced counsel for the defendant as to the weight that should be given to the documents admitted under s 61. In addition, Mr Emmett of Senior Counsel, who appeared with Mr Mykkeltvedt, for the State on a number of occasions very properly noted that care or caution was required in considering certain of the evidence admitted under s 61 because of factors such as the nature of the document, the circumstances in which it was apparently created and the inability of the defendant to cross examine the creator of the document. In the circumstances, I was of the view that there was no significant risk that the evidence would be used by me in some unfair way so as to be unfairly prejudicial to the defendant.
In addition, I was of the view that my primary task was to assess the future risk posed by the defendant of committing a serious terrorism offence if not supervised under an ESO. Future risk of this nature is not to be assessed on the same basis as a Court would determine whether the defendant engaged in certain conduct or had a certain state of mind, in the past. I accepted that material such as terrorism intelligence, allegations which appeared not to be groundless and other evidence that indicated that conduct may have occurred or circumstances may exist which could support a view that the defendant posed a relevant future risk had considerable probative value in the present case, on the assumption that it was accepted. This approach was, in my view, generally consistent with the approach to the assessment of future risk discussed in CXZ v Children's Guardian [2020] NSWCA 338, although the context in which the assessment was to occur in that case was very different from the present case.
Weighing those considerations, I was satisfied that the probative value of each of the documents involved was not outweighed by the danger that the evidence might be unfairly prejudicial to the defendant. Accordingly, I was not prepared to refuse to admit the evidence to which objection was taken, assuming that s 135 of the Evidence Act was otherwise applicable.
On some occasions, Mr Prince SC contended that the Court should use its power under s 136 of the Evidence Act, preserved by s 50(2) of the THRO Act, to limit the use to be made of certain evidence admitted under s 61 of the THRO Act. When it came to formulating a limitation on use, however, I was unable to find one that would have been suitable in the circumstances where the Court's task was to assess future risk. In each case, it appeared to me to be more appropriate to deal with any issues by way of the weight to be accorded to the evidence, in light of the relevant circumstances of each document and the parties' submissions, rather than by seeking to impose an ill-defined limit on use under s 136.
While these reasons deal with all of the s 61 material to which objection was taken, I should mention specifically one document which I considered I was bound to admit under s 61 of the THRO Act but which caused me some concern for reasons which I shall explain. The document in question was a NSW Corrective Services Case Note Report (often referred to as an OIMS note) concerning a field visit to the defendant on 9 December 2020, after he had been released from custody and while he was subject to the ISO made by Johnson J on 25 November 2020. The maker of the report was described as a "Staff Member" and it is stated that he was in the company of an "EO". I understand those letters to be an acronym of "Enforcement Officer", as referred to in the conditions imposed as part of the ISO. Those conditions contained, inter alia, the following: "1. The defendant must submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the defendant for the time being and obey all reasonable directions of an Enforcement Officer (including in respect of providing a schedule of movements). 2. The defendant must be available for interview at such times and places as an Enforcement Officer (or the officer's nominee) may from time to time direct. 3. The defendant must truthfully answer questions from an Enforcement Officer for the purpose of administrating this order about: i. where he is or has been; ii. where he is going or was going; iii. who he is with or was with; and iv. what he is doing or was doing. … PART P: DEFINITIONS In these conditions: … ''Enforcement Officer" means a Corrective Services Officer or Police Officer. …".
It was unclear whether the Staff Member was an Enforcement Officer under the conditions of the ISO. Nor was there any information as to his role, training or expertise, if any.
During the visit, in addition to asking the defendant questions on the topics set out in condition 3(i) to (iv) and discussing other matters relating directly to enforcement of the ISO, the Staff Member: 1. provided the defendant with what was described as "Open letter addressed to Dr Ibrahim Awad Al Badri, alias Abu Bakr Al Baghdadi and to the fighters and followers of the self-declared 'Islamic State' dated 19 September 2014" and asked him if he was aware of it; 2. when the defendant said that he was not, the Staff Member then purported to explain the letter to the defendant; 3. the Staff Member asked the defendant about previous assertions he had made to the Staff Member in regard to Islamic State or Jahbat Al Nusra with discussion and further queries ensuing; 4. the report then continued: "[The defendant] then ask me if I had an agenda asking him these questions, he then made several disparaging remarks regarding his belief that the staff in PRISM were hypocrites. He stated this was due to staff telling him things about his religion when they were non-Muslims. I responded to [the defendant] that my agenda was to try and ascertain what his views were and his thoughts about extremism and terrorist ideology and the risk he may pose towards the community. I discussed with [the defendant] that it was important for me to understand that if he still supported groups such as IS and Jahbat Al Nusra and asked him what if he would do in a future situation if he was approached by someone who wish to travel to the Middle East to fight with IS or other militant groups. [The defendant] stated that he would never discourage someone from doing this but would potentially direct them to an Islamic scholar or someone who had more knowledge of Islam that himself but he would never tell someone not to go or discourage them from doing so. He again stated he did not have the knowledge or requisite standing as a scholar to provide advice in these matters".
My concern with the document was that, assuming the report was accurate, the conversation took place in a context where the defendant was under compulsion to answer questions put by an Enforcement Officer concerning the matters in condition 3(i) to (iv) and was required, under condition 1, to submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the defendant and obey all reasonable directions of an Enforcement Officer. As a result, there was a significant possibility that the defendant was under the apprehension that he was compelled to make himself available for interview, as required by condition 2, and to answer the Staff Member's questions, concerning: 1. the 2014 open letter; and 2. his beliefs and intentions.
There is also a significant possibility that such an interview and such questions went beyond what was covered by conditions 1, 2 and 3 of the ISO.
It has been held, in the context of the Crimes (High Risk Offenders) Act 2006, that there is nothing in that Act, apart from the requirement to attend examinations by psychologists or psychiatrists as a result of a direction under s 15(4) of that Act (which is equivalent to s 24(5)(b) of the THRO Act), that displaces the privilege against self-exposure to a penalty: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [117] to [119]. Similarly, in my view, there is nothing in the THRO Act, apart from the obligation to attend expert examinations if so directed and the requirements of any conditions to answer questions or provide information properly imposed as part of an ISO or ESO, which displaces the privilege against self-exposure to a penalty in relation to persons who are the subject of an ISO or ESO. Further, it appears to me that being subjected to the deprivation of liberty inherent in an ESO is a penalty for the purposes of that privilege.
The defendant objected to this report of the field visit on 9 December 2020 unless the Staff Member was made available for cross examination. He was not made available. In the absence of any indication in s 61 or elsewhere in the THRO Act that the admissibility of documents under that section was dependent on the authors of those documents being made available for cross examination, I was of the view that the document should not be found inadmissible on that basis.
Nonetheless, in the absence of any evidence as to whether the defendant was given the opportunity of refusing to answer the Staff Member's questions designed to advance the Staff Member's "agenda", it was not clear that the defendant had been made aware of, and waived, his right to rely on the privilege against self-exposure to a penalty.
The defendant's objection to this evidence focused on improperly obtained evidence and an analogy with interrogatories. It was not expressly formulated as being based on the privilege against self-exposure to a penalty but there is an obvious relationship between the two types of issues. The parties did not, however, have the opportunity of making submissions on the concern as I have outlined it above.
Nonetheless, to avoid injustice in all the circumstances and having regard to the fact that the Staff Member was not made available for cross examination, I took the view that the appropriate course was to admit the report into evidence but accord it no weight to the extent that it went beyond recording the fact that the interview took place and there were questions, answers and the provision of guidance, falling within what was specifically permitted and required by conditions 1, 2 and 3 of the ISO.

[11]

Documents containing matters to which the Court must have regard under s 25(3) of the THRO Act

Both s 25(3), in relation to determining an application for an ESO, and s 39(3) in relation to determining an application for a continuing detention order (CDO) or, alternatively, an ESO, prescribe for the Court mandatory considerations in pars (a) to (m). The only difference is that in s 39(3)(h) the following words are included before the words that appear in s 25(3)(h): "for an extended supervision order - ".
At [76] of Lawrence, which has been quoted above, Bathurst CJ said that the Court is "at least implicitly required to admit material falling within s 39(3)". The same observation can be made about material falling within s 25(3). Furthermore, essentially the same conclusion in relation to corresponding provisions of the Crimes (Hire Risk Offenders) Act 2006 was reached in State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856 at [21] to [24].
Under s 25(3) of the THRO Act, the Court "must … have regard to the following matters" set out in pars (a) to (m). These include specified "reports", "results of … assessment", "program", "options available", "criminal history", "views of the sentencing court", "beliefs or commitments of the offender" and "any other information that is available as to the likelihood that the offender will commit a serious terrorism offence". In order to give effect to provisions such as s 25(3), such material has to be admitted but it is a matter for the Court to determine the weight to be given to it, in light of the relevant circumstances and having regard to the submissions of the parties.
For these reasons, to the extent that the defendant objected to any of the State's evidentiary material that fell within any of the pars in s 25(3), I considered it admissible by virtue of that subsection. Nonetheless, I considered carefully the weight to be afforded to that material. Otherwise and for substantially the same reasons as set out above in relation to ss 135 and 136 of the Evidence Act, I did not refuse to admit that material or place a limitation on the use that could be made of it in these proceedings.

[15]

The 2011 "whipping" offence

Several years prior to mid 2011, the defendant introduced Mr Martinez to the Islamic faith and acted as his spiritual leader or guide assisting him in learning and understanding that religion, as the defendant understood it. Mr Martinez operated an electrical contracting company and employed Mr Zakaryah Raad as an apprentice electrician.
On 15 and 16 July 2011, Mr Martinez consumed alcohol and illicit drugs. Later on 16 July 2011, he contacted the defendant and asked for his help to get off drugs as he wanted to make a new start. In that conversation, the defendant said to Mr Martinez: "… it means I'm going tie you up, brother, that what I'm going to do. I'm going to tie you up, okay, and that's what you need, brother, because now you need this level 'cause you're not going anywhere".
During another conversation with Mr Martinez approximately an hour later, the defendant told him to leave the front door open. The defendant then immediately contacted Mr Raad and directed him to attend Mr Martinez's premises and take him to hospital if necessary. A short time later, Mr Raad sent the defendant a message "Allam, the Sharia bring right material. It's important" and further messages were exchanged in relation to the involvement of Mr Raad and the defendant in a possible whipping with the number of lashes being in the vicinity of 40.
Mr Raad arrived at the premises about 10:45 PM and the defendant arrived at about 11:30 PM accompanied by two other persons. Mr Martinez woke up and was sufficiently sober to know what was going on. The defendant administered 40 lashes to Mr Martinez's back with a coaxial cable while the other three held Mr Martinez down on the bed. The defendant counted out the lashes and after 10 gave Mr Martinez a break, whereupon he went into the bathroom and vomited. He was then forced back onto the bed and given 10 further lashes and then was given another break. Mr Martinez begged the defendant to stop and asked him to call or make contact with a sheikh to see if he deserved such punishment. One of the persons used a mobile phone and said in effect that he should receive 80 lashes and only sick or infirm people receive 40. The defendant assured Mr Martinez that the last 20 lashes would not be so bad and told him that he loved him, that he wanted him to be a good person and that the way he was going was ruining his life. The defendant reduced the number of loops of cord to lessen the blows. Mr Martinez suffered severe bruising as a result of the whipping.
When Mr Martinez reported the matter to Police he identified the defendant by name and description.
On 19 July 2011, the defendant was arrested but was released on bail. Mr Raad was arrested on the same day.
On 22, 23, 24 and 25 October and 17 and 18 December 2012, there was a hearing in the Local Court in relation to charges arising out of the whipping of Mr Martinez on 16 and 17 July 2011.
On 28 February 2013, Magistrate Maloney found, inter alia, the offences of assault occasioning actual bodily harm in company and stealing property in a dwelling proved against the defendant, Mr Raad and the two other participants. It appears that, on that day, the defendant was released on bail pending the sentence hearing.
On 14 June 2013, the defendant was before the Local Court for sentencing for the whipping office. In his remarks on sentence the learned magistrate noted that the defendant believed his action was justified based on his religious beliefs and he maintained his actions would help Mr Martinez address his alcohol and drug. It was also noted that the defendant acknowledged that Australia was not an Islamic state and that his actions were therefore illegal. Significantly, however, his Honour observed that the defendant was 45 years old. Of the other men involved, Mr Raad was 20 and another was 21. The situation was found to be that: "To assist in [the defendant's] purpose, he recruited three young men who had been groomed by him and duped into believing he was righteous and learned in Islamic law. … The Sheik and elders at the Mosque say [his] actions were wrong and unauthorised - something [he] should have known. [He] acted as a vigilante."
The magistrate imposed on the defendant a sentence of two years' imprisonment with a non-parole period of 16 months in respect of the offence of assault occasioning actual bodily harm in company and a sentence of 12 months, to be served concurrently with that sentence, for the offence of stealing property in a dwelling.
On 24 June 2013, the defendant was released on bail pending an appeal to the District Court in respect of the whipping offending.
On 14 February 2014, the defendant's appeal against his conviction for assault occasioning actual bodily harm in relation to the whipping of Mr Martinez in 2011 was rejected by the District Court but his sentence for the offence was suspended under a s 12 bond for two years. Bennett SC DCJ in his judgment found: "There can be no question that the complainant went forward looking for guidance and assistance from his mentor and teacher, the [defendant], after the complainant converted to the [defendant's] faith, and he did so because of his excessive ingestion of alcohol and drugs, specifically cocaine, about which he felt guilt. There can be no doubt equally when one looks at the telephone intercepts that he was anticipating that he would be tied up as part of the process to help cleanse him from the burden of his abuse of alcohol and the drugs."

[16]

The 2013 offence of being an accessory after the fact to the Arrows Nightclub shooting

On 1 May 2013, Mr Milad Al-Ahmadzai, Mr Osama Toffic and Mr Wessam Hamze shot a person who had attended Arrows Nightclub, a venue which was described as a "Gay and Bi Sex Club", in the car park of the club. The victim suffered life-threatening injuries but survived.
By 17 September 2013, the defendant had become aware of the Arrows Nightclub shooting and the involvement of at least Mr Al-Ahmadzai and Mr Toffic in that offending.
On 8 October 2013, Mr Al-Ahmadzai, and two days later Mr Hamze, were arrested in relation to the Arrows Nightclub shooting.
Shortly before 10 November 2013, Mr Hamze, who was in custody, told his wife to speak to the defendant and tell him to tell "Osama" to leave as soon as possible.
On 10 November 2013, Mr Hamze's wife telephoned the defendant and they agreed to meet later that day. At that meeting the defendant was told to tell "Osama" to leave the country as soon as possible. In the presence of Mr Hamze's wife, the defendant telephoned Mr Toffic and told him that he needed to return to Sydney straightaway regarding a "really serious" matter that could not be discussed over the telephone. The defendant and Mr Toffic arranged to meet at a place where there would be no CCTV recording and, in a face-to-face meeting, the defendant told Mr Toffic to leave the country because he was about to be arrested by police in relation to the Arrows Nightclub shooting.
On 11 and 12 November 2013, the defendant made arrangements to confirm that Mr Toffic was the person to whom Mr Hamze was referring.
On 13 November 2013, the defendant arranged to meet Mr Toffic again.
On 16 November 2013, Mr Toffic's sister and mother bought an airline ticket in his name for travel to Germany via Abu Dhabi. The flight was due to leave at 9:50 PM that night. At 8:53 PM Mr Toffic was arrested by Police at Sydney International Airport.
The defendant's offence of being an accessory after the fact to the Arrows Nightclub shooting occurred while he was on bail pending the hearing of his appeal in relation to the whipping offence. The accessorial offence was taken into account on a Form 1 when the defendant was sentenced in respect of the index offence.

[17]

The 2013 aggravated break and enter in company offence - The index offence

On 15 May 2013, the defendant committed the index offence, while on bail awaiting sentence for the whipping offence.
Sometime in the early hours of 15 May 2013, the defendant drove Mr Al-Ahmadzai and another male to two locations in suburban Sydney where they stole a Ford van and a Toyota Tarago. At about 3:50 AM on that day, the three men drove the two stolen vehicles in convoy to Macquarie Shopping Centre. There, the Tarago was driven into the shopping centre, crashing through the glass front doors through the shops and directly into a group of freestanding automatic teller machines in an attempt to dislodge them. The Tarago was then reversed and driven into the ATMs for a second time. The Ford van was driven into the shopping centre behind the Tarago, did a U-turn and reversed close to the ATMs. The defendant was in the front passenger seat of the van. The defendant and the other two men had entered the shopping centre with the intention of stealing at least one of the ATMs after dislodging it using the Tarago and loading it into the van. As it happened, the defendant and his co-offenders were unsuccessful in dislodging the ATMs. The defendant and the two other men drove away in the van which they parked in a nearby suburb and set alight in order to destroy any forensic evidence. The defendant then drove the other two men back to Auburn in a vehicle registered in his son's name and in so doing activated a speed camera on Pennant Hills Road. On receiving a speeding fine, the defendant's son contacted the defendant who admitted that he had been driving the vehicle.
Between 23 May and 8 June 2013, the defendant told Mr Gebara about the speeding fine and he provided the defendant with the personal details of an employee, Mr Abu-Taer, including his licence details.
On 8 June 2013, a statutory declaration was completed in the name of the defendant's son falsely asserting that Mr Abu-Taer had been the driver of the vehicle which had received the speeding fine after the ram raid at the Macquarie Shopping Centre.
On 10 July 2013, police investigating the ram raid at the Macquarie Shopping Centre spoke to the defendant's son.
Between 10 July 2013 and 14 August 2013, the defendant had a number of discussions with Mr Gebara and Mr Hamze about ensuring that Mr Abu-Taer took the blame for the speeding fine associated with the ram raid.
On 29 November 2013, the defendant was arrested and charged with the offence of aggravated break and enter in company and other offences. He was refused bail.
On 3 December 2013, a search warrant was executed at the residence of the defendant and his family. Items were located in the garage including a CD entitled Syria Uprising and a series of lectures given by Anwar Al-Awlaki. Both Dr Farida and Prof Barton gave evidence concerning the significance of the items found in the garage of the defendant's residence. I shall refer to this material below.
The defendant pleaded guilty to the aggravated break and enter in company offence, and asked that two offences of taking and driving a conveyance without consent, in addition to the Arrows Nightclub accessorial offence, be taken into on a Form 1.
On 27 November 2015, Judge Woodburne in the District Court at Parramatta sentenced the defendant to seven years' imprisonment with a non-parole period of four years and three months. The charge of hindering the apprehension of a person included on a s 166 certificate was dismissed, as no order was sought.
Against that background, the risk posed by the defendant is to be assessed having regard to the matters in s 25(3)(a) to (m).

[19]

Dr Seidler

Dr Seidler provided a report dated 29 January 2021 and a supplementary report dated 11 February 2021. There was no doubt as to Dr Seidler's expertise. She holds a bachelor's and master's degree in psychology, as well as a doctorate in philosophy in the area of cultural and interpersonal crime and a graduate certificate in terrorism and security studies. In my view, her opinions in the present case were not undermined to any extent by her acknowledged lack of expertise in Islamic theology or law.
Dr Seidler interviewed the defendant over a period of two hours and 20 minutes. He engaged readily at interview and impressed as a dynamic, engaging and likeable individual who was also humorous. After it was clarified that he could choose to leave if he wished, the defendant was cooperative with the assessment process. His manner was respectful and deferential, although Dr Seidler noted that he perseverated throughout the entire assessment with using an incorrect name for her despite being corrected a number of times initially.
In addition to her interview with the defendant, Dr Seidler reviewed a significant amount of documentation which was also before the Court on this application. She provided a summary of some of this documentation in her report.
As to his recent situation, the defendant told Dr Seidler that he had been released on 28 November 2020 after serving his full sentence. He noted that he had not been released on parole because he did not complete offence-focused programming. In this regard he was adamant that he "did everything" but "they were trying to trick me". In relation to his ISO, he offered that he was ensuring that he was compliant with it but he expressed frustration that the conditions meant that he was unable to preach his religion to others which he described as "calling people to the pleasure of Allah". In addition, he said that being restricted in his ability to associate with other people seriously limited his life, activities and opportunities.
The defendant described a positive family and developmental experience and denied a history of familial vulnerabilities in the form of criminality, mental illness or significant substance abuse. He conceded that he was the victim of sexual abuse during the developmental period but indicated that it did not occur within the family. There was nothing of significance reported in his occupational or medical history. He was separated from his wife but they maintained an amicable relationship and he said that he had been able to spend time with his children on a regular basis.
The defendant identified that he had a number of friendships with people that were important to him but he claimed that these people were all presently incarcerated. He also reported that he had applied for approval for contact with a number of friends but to date that approval had not been forthcoming. He expressed frustration with this, as well as resentment and dislike for the authorities, saying "they are so deceitful".
The defendant "offered" that he was Australian citizen now and claimed to have taken this around the time of his marriage, although he could not recall why he became a citizen other than stating that he may have needed this in order to marry his wife. As to his cultural identity, he identified Australia as his home emotionally and said he identified as a "Muslim Australian", his culture being Lebanese and his religion Muslim, but he was Australian.
In particular, he said that he liked Australia for the reason that he was allowed to practice his religion freely and added that "no Government can tell me I cannot worship my religion". He said that he liked living in Australia as it was a beautiful country with many opportunities and his children lived here. Dr Seidler's report then dealt with the defendant's attitude towards law and government and recorded as follows: "99. I then asked Mr Fayad had what he dislikes about life in Australia. He commented that whilst there is 'nothing wrong' with Australia, Mr Fayad does not believe he has [to] 'submit to their legislation'. For example, Mr Fayad explained to me that he does not need to vote. Mr Fayad had reported that only Allah has the capacity to legislate and therefore, he is only obliged to abide by Allah's law. Even so, Mr Fayad claimed that Islamic Law is similar to the basic principles of the Australian common law and therefore, he does not believe it is too complicated for him to live in a manner abiding by the basic tenets of Australian law. 100. In contrast to the Australian Law, Mr Fayad claimed that whilst he is supportive of Sharia Law, he understands that Sharia Law can only be administered by those who have authority and only within an Islamic State. To this end, Mr Fayad recognises that Sharia Law would not be appropriate or applicable in Australia. 101. Mr Fayad described the Government as 'the devil', commenting that the Government is hypocritical and uphold the values that are antithetical to his beliefs, such as supporting same-sex marriage and brothels. Further to this, Mr Fayad had stated that in supporting the things they do, the Australian Government 'call(s) people into the worship of the devil'."
As to the Australian people, he described this as "great" and said that that: "non-Muslim Australians do not deserve to punished for their lack of commitment to Islam" but "the administration of any such punishment is the domain of Allah and he described feeling confident that this punishment will come for those who do not 'obey' Allah."
The defendant indicated that he had a strong commitment to his faith and this had involved his regularly attending Mosque in addition to attending lectures and other such events where he could learn more about Islam. He said that he would "100%" prefer to live in an Islamic state, claiming that this would be the desire of all Muslims. However, he added that in contrast to the Islamic State declared in Syria, any Islamic state that he would want to reside in would have to be "legit" and "authorised by the proper scholars".
In relation to violence and extremism: 1. the defendant claimed that he has "always been aware that violence is something that is supported within Islam in certain circumstances and not for the purposes of 'bring(ing) destruction'"; 2. he said that that Islamic State were his "brothers" and therefore he supported them but they did not "do it the right way" because they oppressed and murdered Muslim people and, as a result, he was of the view that they had "transgressed the Quran"; 3. he also said that he felt the same way about other terrorist groups, that these people were his "brothers" as they were all connected in the same religious foundation and he commented that some terrorist or extremist groups had "good intentions"; 4. he claimed, however, that it was not his place to "cast judgement" on any such group and rather "the scholars" would determine if the group's actions and intentions were justified and appropriate; 5. he told Dr Seidler that it was not his "intention" to be violent or to engage in acts of terrorism in support of his religion; 6. he acknowledged that he was very supportive of Islamic State and their activities in about 2013 but he had come to disagree with the group because of the way they oppressed and harmed Muslim people; 7. when asked about his peer connections and strong associations with others who seemingly supported violent extremism and acts of terrorism, he stated that he could not comment on this in any way as this would feel like "judging" his peers which was uncomfortable for him. When asked if he believed he needed to separate from these people he denied this, expressed gratitude for the knowledge he had received from them and asked "How could these brothers be bad for me?"; and 8. The defendant identified other Muslim inmates with whom he had been in custody as being "people of knowledge".
As to his relevant offending, the defendant: 1. said in relation to the 2011 whipping offence, he "will never renounce the act" but claimed that he "didn't have the authority" to act as he did. He accepted that he was like a mentor to the victim, having taught him about Islam and the practice of prayer, and said that he should have been patient with the victim and comforted him, while someone else, with the appropriate Islamic credentials would have the capacity to punish the victim; 2. identified the 2013 ATM ram raid offence as wrong and motivated by the desire to obtain money; and 3. said, in relation to assisting an associate to leave the country after the Arrows Nightclub shooting, that he did this because "he did not want this person to 'fall into the hands of the oppressors'" but he said that, in hindsight, he should not have done this and rather he should have "consulted with 'people of knowledge'" for advice about what to do.
Dr Seidler recorded that the defendant conceded that documentation from New South Wales Corrective Services that outlined his often aggressive, disruptive and non-compliant in behaviour in prison was accurate but he claimed that his behaviour was in response to the aggression of officers, specifically commenting that "if you are going to do you degrade my religion, I will be aggressive".
As to rehabilitative treatment received while in custody, the defendant reported that he was not eligible for any programs in prison other than the PRISM program. Although he had originally offered to agree to participate in this program, he claimed to have been manipulated when he was informed that it was not a "de-radicalisation" program. In this context, he said that he was "not stupid" and "I know what you're trying to do, you just lie". With respect to his decision to cease participation in the program, he stated "You are all deceivers" who are "lying" and "manipulative".
The defendant said that he did not believe he had any risks in relation to future offending relating to violence, violent extremism or otherwise. As to his future plans, he said he wanted to spend time with his family, to live free outside of prison and he said he was motivated to "mingle with (his) Muslim brothers", and return to the workforce. Nonetheless he commented that if an ESO was imposed, he would comply because he believed that this was what Allah had determined for him.
Dr Seidler did not carry out any psychometric testing as part of the assessment but referred to previous assessments done and stated that she would not expect that the findings on any current testing to be significantly different. In this context, she stated: "in fact, given his strong religious commitment and virtuous manner, I would expect [the defendant's] test results to indicate high levels of positive impression management, rendering the test profiles uninterpretable and ultimately unhelpful in any case."
Dr Seidler's opinions included the following: 1. the defendant was "a passionate Muslim and he is also an engaging, dynamic and likeable individual" who "served as a religious guide and mentor, who actively proselytised" and who was a leader; 2. although he "denied being supportive of terrorism or violent extremist groups that he also claimed to now denounce his offending on religious grounds, stating that he does not have the religious authority to act as he did", it was evident that his personal ideology continued to be extreme and that he continued to associate closely with people who held similarly extremist views and who condoned violent extremism in addition to being influenced by these people in his own thinking; 3. his strong commitment to his faith and to living his life according to the tenets of his religion was so strong that he prioritised this over all else including the laws of this country; and 4. therefore, even though he said he did not support violent extremism and had no intention to engage in such action himself, there remained a serious risk evident in this case that was ongoing and could result in a serious terrorism offence.
Dr Seidler then referred to the use of risk assessment tools in risk assessment for terrorism, and in this regard Dr Seidler acknowledged that: "risk assessment is an imperfect science that is subject to bias, it is time-limited and bound by the data available at the time of assessment. Further, it is noted that the prediction of occurrence of particularly low base rate events, such as terrorism, is especially difficult, as the event of interest is so rare" and "Risk assessment in the area of terrorist activity or extremist violent offending is in its infancy and is hampered by the fact that research into this kind of behaviour is developing and that much of this research does not explore the individual or psychological factors that motivate such action. Given the extant state of knowledge in this field, we cannot anchor an assessment of risk in actuarial measures that provide statistical expressions of likelihood. Further to this, the focus is on dynamic factors that relate primarily to the individual's circumstances and specifically, their ideology, which is understood as the motivating drive for the actions of interest."
Dr Seidler used the Violent Extremism Risk Assessment tool (version 2 Revised: VERA-2R), which is a structured professional judgement tool designed to evaluate an individual's risk of future violence/offending motivated by extremist ideology. After considering the relevant indicators, Dr Seidler gave the following summary: "Overall, on the basis of the VERA - 2R, [the defendant] is considered to present with a number of salient risks related to violent extremism with few, if any, notable protective factors. The primary domains of risk pertained to his extremist ideology his strong and enduring associations with others who also hold such an ideology and who have been involved in matters of national interest, including terrorism-related offending, and [the defendant's] access to extremist content. Further to this, [the defendant] is considered to be vulnerable to the influence of his peers, who he considers to be 'men of knowledge' and from whom he should learn and take guidance. [The defendant] expressed negative and rejecting sentiments in relation to the Australian Government and other authorities and it is also evident that he rejects the values that the Australian system seeks to uphold, creating a strong divide between 'us' and 'them' in his mind. It is also noted that his primary motivation is religious and framed by his ideology, although [the defendant] is also motivated, at least to a degree, by a sense of belonging and a sense of moral superiority. Taking into account the above-mentioned risk and protective factors, it is my assessment that [the defendant] poses a High risk of future in violent extremism."
Whilst she was not of the opinion that the defendant would be responsible for an act of violent extremism or terrorism on his own, though this could not be discounted, it was Dr Seidler's view that it was far more likely that his involvement in such activity would be through his connections with others who hold a similar ideology and who seek to action such a plan. In other words, he "would likely provide support, encouragement and some organisational assistance rather than be the person carrying out the act of violence himself."
Dr Seidler also opined that: "it is my view that the most likely expression of the [defendant's] risk would be through his involvement in a terrorism offence that may involve a variety of criminal action, including that involving serious violence and large-scale loss of life. Whilst I'm not of the opinion that [the defendant] would likely carry out this offence independently, it is more likely that his involvement would be related to the organisation, planning, preparation and training for any such offence."
Specifically, in relation to psychological disorders, Dr Seidler was of the view that: "There is no evidence that [the defendant] is suffering from any diagnosable psychological condition in relation to ill mental health. However, he does present with traits consistent with an Antisocial Personality Disorder, although I do not believe that these are of sufficient severity to warrant formal diagnosis."
Dr Seidler's supplementary report of 11 February 2021 was provided in response to a request to her to consider further documentation and whether it changed her views. That documentation including material the substance of which was also before the Court. In Dr Seidler's opinion, this additional documentation supported her initial assessment and the identification of the relevant risks posed by the defendant. Her opinion remained unchanged and, if anything, the documentation reviewed for the supplementary report served to strengthen her assessment and the concerns she identified that needed ongoing management.
Dr Seidler was cross-examined. She made appropriate concessions and acknowledged one factual mistake in her supplementary report. Her handwritten notes were produced and admitted into evidence. Dr Seidler's factual assumptions were not shown to be unsound and her reasoning and opinions were logical and satisfactorily explained. In these circumstances, I accepted her evidence and took into account her opinions. Nonetheless, I did not treat her opinion as to the risk posed by the defendant as, by itself, determinative of that matter. This approach was based, at least in part, on the acknowledged lack of predictive reliability of the risk assessment tool relied upon by her.

[20]

Dr Ellis

Dr Ellis conducted a clinical interview with the defendant on 5 January 2021 for three hours. He was also provided with documentation concerning the defendant's case which he reviewed. Dr Ellis provided a report dated 27 January 2021. Dr Ellis is a formally trained forensic psychiatrist in public and private practice and holds the post of Clinical Director and Medical Superintendent of The Forensic Hospital. He is also the Chair of Advanced Training in Forensic Psychiatry for the Royal Australian and New Zealand College of Psychiatrists. He is Consulting Psychiatrist to the New South Wales State Protection Group, Police Negotiator Unit, Countering Violence Extremism Unit and Fixated Threat Centre. There was no challenge, in these proceedings, to his expertise.
After recounting noncontentious aspects of the defendant's personal history, Dr Ellis recorded that the defendant did not "self identify" with any psychological problems and noted that he reported his physical health was good.
Dr Ellis noted that the defendant said he was frustrated by being questioned about Islam by people of non - Islamic faith and, although he has tolerated this questioning thus far, he said that he became anxious when he is questioned by officers about Islam. Dr Ellis recorded two particular comments in this regard: "He feels that the officers are malicious and misinterpreting his statements" and "He says that he calls his lawyer if he becomes frustrated [with such questioning]. He says his lawyer has given him some phrases he can use with the officers when he feels anxious at their questioning and he has found that these phrases helpful in dealing with them."
As I understood the situation, this comment was not made in respect of any of the lawyers acting for the defendant in these proceedings. Nonetheless, and in view of the defendant's reluctance to declare his position in relation to terrorist organisations or acts of terrorism, stating that it was not for him to judge and that he would defer to Islamic scholars or "men of knowledge", it appeared that there was a significant risk that the defendant used phrases given to him by others to cloak, or avoid disclosing, his ongoing support for terrorist organisations and persons engaging in terrorist acts.
As to his psychiatric history, Dr Ellis noted a screening measure of intelligence completed in 2018 placed him in the low average range. In the same year two self-report personality questionnaires indicated that he tended to over-report virtuous traits and under-report common minor faults, rendering the interpretation of the measure invalid. In addition, in 2018 in a self-report questionnaire the defendant: "showed elevated responses to questions designed to elicit both self-deception (over-confident self appraisal) and deception of others (impression management)".
As to the 2011 whipping offence, the defendant said to Dr Ellis that he took authority which he did not have, in relation to administering Sharia law. He reported that the 2013 ram raid offence was motivated by money and that he was close with his co-offender and each of them talked the other into doing the offence. He said he had no intention of repeating this behaviour. As to the Arrows Nightclub accessory offence, he said this was done in order to "protect a friend, my Muslim brother" and, now, he would advise people to seek advice from "men of knowledge" if they found themselves in trouble with the law. Dr Ellis then recorded that the defendant was "more circumspect in discussing matters that have not been adjudicated". It was also noted that the defendant reported that he "engaged with a wide range of 'Muslim brothers' and would never turn away a fellow Muslim".
In relation to the defendant's current attitudes, Dr Ellis recorded that the defendant said: 1. he was cooperating with the authorities and that he did not "plan to go and do any kind of terrorist offence"; 2. he liked living in Australia and noted that his accommodation was paid for by the state as well is his unemployment benefits but he ultimately attributed this fortune to Allah; 3. he did not have any authority to order terrorism to occur and Dr Ellis recorded that he also said: "'I do not have the right to attack anyone'. He said that an authentic Islamic person in authority would not give instructions to engage in terrorist behaviour"; 1. he does not think democracy is the best way to run a state and would prefer to live in an Islamic run state and, in particular, he was perturbed that same-sex marriage was allowed in Australia; 2. he would not vote in elections and would pay a fine instead and believed that women should play a traditional role involving household chores and raising children only; 3. he was critical of the United States and Australia for engaging in wars in the Middle East and considered the rhetoric of the leaders hypocritical; and 4. he would continue to preach the Islamic faith to anyone who would listen and: "he would continue to speak with people he considered his 'Muslim brothers' regardless of whether they were considered to be terrorists or related to terrorist activity".
Dr Ellis diagnosed a personality disorder on the basis of his superficial emotional responses over a lengthy interview, his poor function in relationships, repeated impulsive acts and diffuse self-identity. In addition, the psychiatrist noted that there was: "a significant pattern of deception, including offences of deception, infidelity and his response to structured questionnaires that indicates difficulty maintaining an authentic personal identity and communicating in an authentic manner to others. He adopts a rigid style of thinking, showing difficulty empathising to the viewpoint of others including 21st-century women, homosexuals and persons who represent democratic authority."
In summary, Dr Ellis was of the opinion that "the overall pattern of presentation is consistent with a personality disorder with antisocial and narcissistic features" but there was no evidence of a major mood or psychotic disorder.
Dr Ellis then considered the applicant's risk of violence by reference to the HCR - 20 V3 structured professional judgement tool and concluded that the defendant would fall into a group of persons with a risk for violent offending that is moderate in frequency with potential for serious consequences in his specific case only when engaged with others who would participate in violence with him. As a consequence, Dr Ellis was of the view that the defendant would be considered an overall less risk of committing a serious general violent offence than other violent offenders released from custody.
As to the risk of serious terrorism offences, Dr Ellis relied on the "investigative template" provided by the Terrorist Radicalisation Assessment Protocol (TRAP - 18) template based on patterns displayed by Islamic, right-wing and single issue terrorists who completed targeted violence as well as the VERA-2R instrument, referred to above. Dr Ellis's conclusions in relation to these matters were as follows: "in considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence [the defendant] displays a moderate number of the characteristics associated with terrorist related violence. His tendency to deception is of particular concern, and renders assessment of factors based on his statements alone unreliable. His personality style is one that seeks dominance, and conversely [is] easily dominated. He would most likely be at risk of extremist violence if a person with a terrorist agenda targeted and influenced him. He has a fragile self identity, and experiences pro social groups as rejecting him. He has been prepared to engage in other forms of group criminal activity, at the behest of others and leading others. He also derives satisfaction from influencing others, and his associations with persons engaged and interested in violent extremism could involve him in recruiting, fundraising and general support of terrorism, which are more likely than personally engaging in terrorist violence in his case."
Finally, Dr Ellis noted that the major areas of concern in relation to the defendant were association with, and promotion of, terrorist activity. It was also noted that his style of communication was vague and he was likely to derive some excitement from testing limits and this may lead to repeated infractions of rules. It was also the doctor's opinion that, from a psychiatric risk management perspective, a period of two years' supervision was considered reasonable in order to improve function in the community and refine the appraisal of risk. Dr Ellis recorded his opinion that: "Personality disorders are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. The highest risk for recidivist offending is the first two years after release from custody. A major factor in revising his risk would be establishing a pro social and meaningful routine in life, coupled with avoidance of antisocial or terrorist related persons. This is likely only to be established if he remains under supervision. This period [of two years] is estimated based on his current mental state, personality disorder, and current attitudes to supervision that will be unlikely to change in the short-term."
Like Dr Seidler, Dr Ellis was provided with additional material, being material that was before the Court, and requested to provide a supplementary report. In his supplementary report of 19 February 2021, Dr Ellis said that the information did not fundamentally change any opinion expressed in his previous report. Indeed, the information regarding other people he may have had contact with who had criminal and terror-related charges confirmed him in his opinion that the defendant may be susceptible to influence by others. Finally, Dr Ellis said: "I remain of the view that his acquisition of Islamic related ideas has been piecemeal, and tends to rest on issues that resonate with his self-image at the time, rather than a coherent ideology shared in totality with others."
Dr Ellis was cross-examined and accepted that neither he nor anyone else had the ability accurately to predict human behaviour in an individual person for future events and that, as he stated in his first report, no tool specifically assessed for serious violent offending which would constitute a serious terrorism offence and those type of offences were rarer, and thus statistical methods were unable reliably to detect them in large samples. Dr Ellis explained his working notes for the application of the TRAP-18 tool.
I found Dr Ellis, like Dr Seidler, to be an impressive witness who gave properly considered and qualified answers in cross examination and whose opinions appeared well found and were explained logically and persuasively. I accepted his evidence but, once again, I did not consider that his opinion as to the defendant's risk of engaging in violent or terrorist activities was determinative of the issue that the Court must decide. Rather, I treated it as material I should take into account when forming my own view as to the relevant risk posed by the defendant.

[21]

Dr Davis

Dr Michael Davis is a consultant forensic psychologist who provided a report dated 22 February 2021 which was tendered by the defendant. In essence, Dr Davis's evidence was that there is currently no validated way of assessing the risk of recidivism for terrorism offences. This was said to be because the base-rate of recidivism was far too low to enable such assessments to occur without an overwhelming number of false positives. It was also said that none of the extant tools have been validated in terms of their predictive validity, although he said that the TRAP-18 has shown a particular form of "postdictive" validity. Dr Davis also described the difficulties inherent in defining risk categories in relation to the risk of terrorism recidivism.
Dr Davis was not cross examined and, as I understood it, Dr Seidler and Dr Ellis did not fundamentally disagree with Dr Davis's observations concerning the lack of predictive validity, in an actuarial or statistical sense, of the tools or templates employed.
In relation to the use of risk assessment tools and templates employed by the experts, namely VERA-2R in the case of Dr Seidler, and both VERA-2R and TRAP - 18 in the case of Dr Ellis, the defendant submitted that these tools do not provide a proper evidentiary basis upon which the Court may assess risk of terrorist-related violence, let alone the risk of the defendant committing a serious terrorist offence. It was said that in the absence of any capacity to anchor risk to statistical expressions of likelihood, the field of discourse concerning the risk of a person committing a terrorist offence depends upon unsupported speculation and cannot properly be described as knowledge that has arisen out of training, study or experience in the sense described in HG v The Queen (1999) 197 CLR 414; [1999] HCA 2 at [38]-[39].
In response to this, the State acknowledged that the Court must be mindful of the limitations of predictive tools, a submission that reflected the candour of responses given by both Dr Seidler and Dr Ellis in cross-examination on this issue. The State did not submit that the results of these tools should be a substitute for the Court's final evaluation of risk nor did the State shy away from the rarity of the events that the tools were attempting to predict. Rather, it was submitted that these tools assist the person conducting the assessment to evaluate an individual by reference to a number of indicators that have been established, through empirical research, as having a relationship to violent extremism, terrorist violence and the radicalisation process, as Dr Seidler pointed out at par 137 of her 29 January 2021 report.
Even though Dr Davis's evidence was accepted, it did not fundamentally undermine the opinions of Dr Seidler and Dr Ellis. The tools or templates Dr Seidler and Dr Ellis used were appropriate in assisting them to form their opinions, by way of structured professional judgements and not actuarial or statistical predictions, as to the relevant future risk posed by the defendant. The evidence of Dr Seidler and Dr Ellis, viewed as a whole, did fall within their respective areas of specialised knowledge based on their training, study or experience. Further and in any event, their evidence concerning their evaluations using the tools and templates referred to was but one of many matters taken into account by the Court in accordance with s 25(3) and other provisions of the THRO Act when making its assessment of whether the defendant posed a relevant risk for the purposes of s 20(d).

[23]

Results of any other assessment as to the likelihood of the defender committing a serious terrorism offence - s 25(3)(b)

Ms Dewson, a forensic psychologist, prepared a risk assessment report dated 28 September 2020 and a supplementary report of 11 November 2020. As was his right, the defendant did not consent to participate in any interview with Ms Dewson and, as a result, her assessments were based on "file information only". In light of this and the later reports of Dr Ellis and Dr Seidler based on lengthy interviews with the defendant, Ms Dewson's reports attracted less significance than they might otherwise have been the case.
I have taken into account Ms Dewson's opinions but, in the circumstances, it is not necessary to summarise here in great detail her reasoning, which is largely consistent with that of Dr Seidler and Dr Ellis. It is sufficient to note Ms Dewson's opinions that: 1. the defendant's risk of general, violent and violent extremism offending all fell in the moderate range; 2. should the defendant commit a serious terrorism offence it was most likely that this would include him being a member of a terrorist organisation, recruiting for a terrorist organisation, providing funds to a terrorist organisation or individual who had intend to engage in a terrorist act or providing support to a terrorist organisation or an individual who had an intent to engage in terrorist activity; 3. the possibility that the defendant could himself carry out an act of religious inspired violence was considered less likely; 4. the defendant's associations were arguably the most prominent factor contributing to his risk; and 5. the defendant's interactions with law enforcement suggested that he may hold anti-authority attitudes and may also suggest that he placed his religious beliefs above the rules governing the custodial environment.
After considering additional information provided to her, Ms Dewson revised her opinions, as set out in her supplementary report. Her revised opinions included that the defendant actually fell in the high risk category and she went on to explain: "30. Whilst it is assessed that [the defendant] is at greater risk of violent extremism because of the new evidence outlined above, that nature of that risk remains the same. That is, he appears to be most at risk of indoctrinating and radicalising others, with the view for them to take up the Jihad overseas or within Australia. Whilst he personally has a history of violence, the risk of him personally engaging in acts of violent extremism is considered less likely, although not totally inconceivable. Given his social standing within his peer networks, both in the community and in custody, it is assessed that [the defendant] is most at risk of taking an influential position within a group structure, in which he, directly and indirectly, supports the actions of the appointed group leader, with the objective of furthering religious objectives, namely the Jihad. 31. … To summarise, Given [the defendant's] behaviour in the community and in custody, his ongoing association with known terrorists, his recently reassessed high risk of violent extremism, and his outstanding treatment needs, it is my opinion that his release into the community in the absence of any supervision would pose a significant risk to the community. He has not completed adequate intervention to ameliorate his risk and subsequently has outstanding treatment needs. ...."
Ms Dewson was cross examined, including in relation to the VERA-2R tool and the training she received in relation to it. She confirmed that when she used the term "violent extremism" she was referring to politically or religious motivated acts of violence. She also said that the result of the risk assessment process was to come up with likely scenarios, and the likely scenarios for the defendant had been outlined in her report. Ms Dewson also acknowledged that: "Ultimately, nobody knows whether or not [the defendant] is going to commit an offence moving forward. Nobody has the ability to predict the future. What I'm saying is that if he does go on to commit an offence, knowing his risk factors and what the literature says about those risk factors should he commit an offence, this is what it has potential to look like. Whether or not he actually goes on to commit an offence, nobody knows."
Nothing in the cross examination caused me to discount the opinions expressed by Ms Dewson.

[26]

Treatment or rehabilitation programs - s 25(3)(f)

The defendant's participation in treatment or rehabilitation program, such as it was, was in effect the subject of the PRISM Assessment Report dated 12 November 2018 prepared by Matthew Wade and Stephanie Scott-Smith, psychologists with the PRISM, CVE Programs of New South Wales Corrective Services.
This report was considered by Dr Seidler, Dr Ellis and Ms Dewson and, given its age and the fact that it has been so considered, the PRISM report can be dealt with relatively briefly. Two significant matters were to be noted.
First, the PRISM report contained positive aspects as to the defendant's appropriateness, at the time it was prepared, to participate in the PRISM program, notwithstanding the negative aspects of the defendant's case. In this regard the report included: "In the past [the defendant] has declined on a number of occasions to participate in assessments with staff members. This lack of engagement will present as a significant responsivity issue. Until his poor insight and personality traits are addressed, [the defendant] continues to present a risk of influencing others toward radicalisation. He continues to claim ignorance regarding key features of his faith and refuses to disavow violent extremism on the basis of lacking the necessary knowledge or authority. These ideological factors will persist and leave [the defendant] susceptible to negative influences until addressed through theological intervention. [The defendant] continues to identify with persons known to promote violent extremism, and to affiliate with inmates currently detained on terrorism related convictions. This is further complicated by his placement within the HRMCC which significantly limits his ability to interact with pro-social persons. Although the frequency of contact with community-based persons of interest has declined in recent years, [the defendant]'s states this is solely due to the restrictions placed on his visitors whilst detained at the HRMCC. In addition, [the defendant] has proposed the owner of the Bukhari House bookstore as his parole address, an unsuitable setting that would likely expose him to ongoing violent extremist ideology and social networks. [The defendant] has a supportive and essentially prosocial family network without a history of involvement with the justice system. His family have expressed their desire to support him in meeting any future parole conditions and to re-engage him in prosocial activities in the community. During interview [the defendant] largely espouses prosocial attitudes, and due to his advancing age, has expressed a desire to disengage from criminal activity and to focus on his family and his faith. [The defendant] has demonstrated a willingness to engage in recent weeks, and due to his strong drive and desire to be liked, may be amenable to redirection and positive reinforcement. His significant improvement in engagement throughout the assessment period suggest that [the defendant] may be approaching a readiness to meaningfully engage in treatment."
It appears that, unfortunately, when parole was refused the defendant disengaged from the PRISM program and did not participate in any treatment. He also made the negative comments referred to by Dr Seidler concerning the officers involved in his treatment.
Secondly, the report raised questions as to the defendant's truthfulness and reliability including the following: "Paulhus Deception Scale (PDS) The PDS is a well-validated and reliable measure of an individual's tendency to give socially desirable responses on self-report instruments. When responding to the questionnaires some people attempt to manage the impression they give by describing themselves in overly positive terms. Others try to be honest, yet exaggerate virtues as a result of self-deception. [There are] two subscales: Impression Management (IM) is the tendency to give inflated self-descriptions to an audience (i.e. conscious distortion), while Self-Deceptive Enhancement (SDE) is the tendency to give honest but inflated self-descriptions. [The defendant] scored in the Above Average range for the Impression Management scale which is elevated but not invalid. [The defendant] scored in the 'Very Much Above Average' range on the Self-Deceptive Enhancement scale. This profile suggests that the [defendant] has provided overly positive responses stemming from a trait-like (personality) tendency towards overly self-favourable presentation, rather than a deliberate attempt to mislead. [The defendant's] responses suggest a rigid overconfidence and narcissistic tendencies, arrogance, a pervasive lack of insight, and the potential to display anger if confronted. [The defendant] is likely to describe himself as a well-adjusted individual. In early interactions with strangers, [the defendant] may be viewed as interesting, confident and well-adjusted. However, with more exposure, others may perceive him as arrogant, hostile and domineering. In short, high SDE scores reflect positive self-esteem but potentially poor interpersonal adjustment."
In my view, the PRISM report supported, and was consistent with, the assessments made by Dr Ellis, Dr Seidler and Ms Dewson. Its conclusions appeared well founded and were adequately explained. I took it into account in forming my assessment of risk.
On 17 April 2019, some time after the defendant had been refused parole, the defendant wrote to the PRISM team and the State Parole Authority informing them that he would no longer talk, see or engage with them in any way, stating that he would no longer validate what he described as a lying, hypocritical and manipulative process.

[33]

Dr Farida

Dr Farida holds a Bachelor of Arts and Sciences in public administration from the American University of Beirut, Master's degrees in International Affairs from the Lebanese American University of Lebanon and in Politics and International Relations from the University of New South Wales as well as a doctorate in philosophy in security studies and criminology from Macquarie University. She is qualified to express expert opinions concerning terrorism and political violence, especially in relation to Islam in general and in relation to Islam in the Middle East in particular. Her report provided useful background for understanding the rise of Islamic associated terrorism in Australia and other parts of the world during the twenty-first century.
More specifically, Dr Farida was asked to express her opinion concerning whether the material found in the defendant's garage, when the search warrant referred to above was executed, was associated with or reflected violent extremist ideology or was material promoting or supporting terrorist activities. She expressed the opinion that, while some of the material did not fall into these categories, the documentary Syria Uprising fell into the category of violent extremist ideological material. Her evidence was that this material was made by Al-Nusra Front or Jabhat al-Nusra and shared similar features to ISIS propaganda videos in its themes and features. The themes included power, violence, vengeance, benevolence, Islamic morality, warrior training and apostasy from Islam by ISIS's opponents. The type of action promoted included active attempts to convert non-Muslims and to use violence to uproot a society in order to change it to an Islamic state.
In addition, the material by Anwar Al-Awlaki, found in the defendant's garage, was said to be of concern because his statements have been instrumental in radicalising youth who went on to fight in Syria or to commit terrorist attacks in the United States. Dr Farida also mentioned that material of the nature found could motivate radicalised behaviours that reflected a strict adherence to extremist ideology that Al-Qaeda and ISIS represented.
In relation to the 2011 whipping offence, Dr Farida noted that the administering of corporal punishment: "echoed similar examples [of] a strict adherence to an ideology that supports violent extremism. In other words, administering this type of violence outside the judicial system aligns with Islamist groups such as ISIS and Al-Nusra Front on administering acts outside the law even if it does not permit it."
Dr Farida also viewed a photograph of the defendant with Mr Alqudsi with his finger raised, during a protest in 2012, and noted that this sign had been affiliated with violent extremism being widely used in videos depicting violent Islamist figures. She said: "the hand signal becomes a point of affirmation and legitimisation which is what ISIS aims to achieve, because it resembles a sign of unity of God. In many of the analysis the tawhad signal also signifies ISIS's sign of domination".

[34]

Prof Barton

Prof Barton holds a Bachelor of Arts (with honours) from Monash University in Asian Studies and a doctorate in philosophy from that University focused on liberal Islam in Indonesia. Since about the turn of the twenty first century, Prof Barton has turned his research attention to violent Islamism. From 2007, he has been closely involved with the Global Terrorism Research Centre and has been involved with the Hedayah Centre for countering violent extremism. He has recently researched extensively IS and ISIS and the approach of this movement to recruitment and radicalisation.
Like Dr Farida, Prof Barton was of the view that the presence of lecture sets of Anwar Al-Awlaki in the material found in the defendant's garage was a matter for significant concern, stating that: "their presence is not proof positive of support for violent extremism but is strongly suggestive of it, and it generally does indicate support for Salafi extremism."
I pause to note here that Prof Barton did accept, in cross examination, that Salafi extremism may embrace peaceful as well as violent extremism.
Prof Barton was also of the opinion that the presence of the Syria Uprising material was concerning in that this material: "does not constitute definitive evidence of support for violent extremism but is strongly suggestive of it, and it generally does indicate support for Salafi extremism."
In relation to the administration of corporal punishment for drug taking, as in the 2011 whipping offence, Prof Barton was of the view that the championing of such corporal punishment was largely the domain of Islamist extremists. He noted that non-violent Salafis, while approving of such punishment in Saudi Arabia, would not campaign for its implementation in other nations. In his view, the conduct involved in the whipping offence did not reflect typical non-violent Salafi practice and was therefore suggestive of the influence of Salafi-jihadi violent extremism as seen in the behaviour of "AQI, ISI, and ISIS".
Prof Barton was of the opinion that the contents of the ISIS propaganda video relating to Mr Raad were: "clearly intended to advocate for support for those fighting as so-called mujahideen in Syria and Iraq with IS and to encourage others to join the so-called jihad".
As to the defendant's reported refusal to stand to acknowledge the court in other matters, Prof Barton explained: "Whereas mainstream Salafis acknowledge, for example, the authority of the Australian legal system and demonstrate respect for it when their paths cross with it, Salafi jihadis will go out of their way to proclaim their complete rejection of the authority of any legal system other than their own."
Prof Barton also expressed views that the defendant's communication with others including his family was consistent with violent Salafi extremism.
As to the 2012 protest in the Sydney CBD, Prof Barton reviewed video footage and photographs and concluded that the content of some of the placards and signs was "very extreme and strongly aligned with Salafi jihadi violent extremism".
Finally, it can be noted that Prof Barton provided background as to the emergence of Jabhat al-Nusra and related matters. This included the opinion that: "anyone involved in Sydney's extremist Islamic circles … especially those linked to … Bukhari House …, would be deeply familiar with the Salafi jihad violent extremist ideas and activities of JaN [Jabhat al-Nusra] and the close association of JaN with al-Qaeda …". He did, however, note that most members of Sydney's Islamic community were not drawn to Salafi jihadi violent extremism.

[35]

Conclusions as to beliefs or commitments of the defendant

The evidence of Dr Farida and Prof Barton assisted to understand the significance of other parts of the evidence. Their opinions, together with the other evidence, some of which has been referred to above and some of which is dealt with below, led to the finding that the defendant held beliefs consistent with supporting terrorism activities, including terrorist acts committed by others or the activities of terrorist organisations.
For example, and without attempting to be exhaustive, the defendant's beliefs and commitments could be inferred from his actions when participating in a protest in the Sydney CBD against a film perceived to be anti-Islamic, on 15 September 2012. The defendant was photographed on that occasion standing in Pitt Street Mall with his arm around Mr Alqudsi, who is seen displaying a single raised index finger, which the evidence of Dr Farida established could "in some contexts" be affiliated with terrorist organisations or related organisations, such as ISIS, Al Nusra Front, Al-Qaeda and Jaysh Al-Islam (Brigade of Islam).
Video footage of the protest included the defendant speaking, in English and in another language, to a group of men. One of those carried a sign reading "Behead those who insult the Prophet". An ISIS flag was also displayed at the protest. Later in the day, the protest involved some violent confrontation with police, although the State did not suggest that there was any evidence that the defendant participated in the violent confrontation or incited such participation. The banners and signs displayed as part of that protest were, in Prof Barton's opinion, strongly aligned with Salafi jihadi violent extremism.
Further insight into the defendant's beliefs and commitments was derived from his comments when being interviewed by Dr Ellis and Dr Seidler. In those comments, he expressed support for the activities of terrorist organisations, with the only substantial qualification being that that he did not support such activities or organisations if they oppressed or harmed other Muslims. This evidence has been referred to above in greater detail. Statements to Dr Seidler and Dr Ellis illustrative of his beliefs and commitments, and the qualification on his support for terrorism and terrorist organisations, included: 1. the defendant's specific comments recorded in the reports of Dr Seidler and Dr Ellis concerning whether and to what extent he supported such organisations or activities, some of which have been mentioned above when those reports were being considered; 2. his unwillingness in the interviews with Dr Ellis and Dr Seidler to condemn terrorist organisations, such as ISIS or Jabhat al-Nusra and their various emanations, except if they oppressed or harmed Muslims; 3. his stated unwillingness to dissociate from his "Muslim brothers" even if they have engaged in terrorist acts or terrorist related or other violence; and 4. his refusal to pass judgement on other Muslims and his stated willingness to defer to "men of knowledge" or Islamic scholars in these regards, without identifying who those persons might be and what they might be likely to endorse or condemn.
In light of Dr Farida's and Prof Barton's evidence concerning the 2011 whipping offence, it was also significant in ascertaining his beliefs and commitments that the defendant stated to Dr Seidler that he would "never renounce the act" involved in that offence, although he acknowledged under Sharia law he personally did not have the authority to carry out the punishment.
These conclusions as to the defendant's beliefs and commitments concerning terrorist acts or activities took into account the opinions of the psychologists and the psychiatrist as to the likely unreliability of the defendant's apparently positive or "pro-social" statements in these regards, given the findings in relation to the defendant's performance in relation to "Impression Management" and "Self-Deceptive Enhancement" referred to above.
Similarly, it was concerning that, as the defendant told Dr Ellis, he was apparently given phrases that he could use when he felt anxious at being questioned concerning his beliefs.
Having regard to both of those matters, it was necessary to take into account, when assessing the defendant's statements as to his current beliefs and commitment, that his refusing to pass judgement and deferring to "men of knowledge" or scholars, may well have been either a deliberate or unintentional mechanism that allowed him to answer the questions without disclosing the actual extent of his support for terrorist acts or activities and organisations.
Having regard to the evidence referred to above and the evidence of the defendant's associations and conduct in custody dealt with below, it was concluded that the defendant's beliefs and commitments were such that he was and remained prepared to: 1. associate with and support persons who have committed or intend to commit serious terrorism offences; and 2. support organisations which are, or have been, or have been the genesis of, terrorist organisations, within the meaning of Pt 5.3 of the Criminal Code.

[39]

OIMS notes

Extracts from the NSW Corrective Service's OIMS notes concerning the defendant's conduct while in custody and while subject to the ISO were in evidence. It was noted that the defendant had conceded in his interview with Dr Seidler that these records were generally accurate but he claimed that his aggressive or disruptive behaviour was in response to the aggression of officers, specifically commenting that: "if you are going to do you degrade my religion, I will be aggressive". Relevant incidents disclosed in those notes included those referred to in the following paragraphs.
On 5 March 2014, the defendant posed questions to Corrective Services personnel regarding the conducting of Muslim prayers. When advised that staff constraints meant that this could not be facilitated, he said he would commence prayers in the exercise yards, only to be then informed that such prayers would not be permitted in this way. It was observed that the defendant seemed to be the "mouth piece" for Muslim inmates in a particular wing of the gaol.
On 7 April 2014, it was reported that the previous week inmates had been offered an opportunity to attend Chapel to pray, 15 inmates at a time. However, the inmates did not like the idea of attending without the defendant and therefore refused to attend.
On 24 October 2014, senior Corrective Services personnel discussed with the defendant his re-integration back from segregation into the main section of the gaol, provided that he agreed to keep his beliefs to himself. The defendant would not give a guarantee that he would do this. On 28 October 2014, this issue was again raised with the defendant and, once again, he refused to provide a commitment to keep his beliefs to himself and cease seeking to convert others to Islam, as he understood it.
On 22 March 2015, two inmates approached NSW Corrective Services officers and stated that the defendant had attempted to convert them to Islam. On 30 April 2015, the defendant was seen handing out leaflets on Islam to other inmates and talking with them regarding religion, only to cease doing so when approached by Corrective Services personnel.
On 20 September 2015, after an inmate yelled at Corrective Services personnel about bruises on his face, the defendant yelled at the officers that they would have their heads cut off.
On 25 April 2017, during a personal telephone call to his son, the defendant referred to ANZAC Day as "Kafir Day".
On 4 July 2018, when discussing the conversion of inmates to Islam and the possibility of these conversions being viewed as imposing extremist views, the defendant was informed that he would have to do everything possible to avoid being linked to anti-social aspects of his religion. The defendant replied that stopping him from publicising his faith would be akin to asking him to cease certain bodily functions. The defendant also disputed the notion that he was converting people, clarifying that, since his belief was that all people are born Muslim and merely stray from the path of Islam, he was not engaging in conversion but reversion.
On 7 December 2020 while the defendant was subject to the ISO, Enforcement Officers conducted a field visit to the defendant at his home, where it was recorded that he presented as polite and amicable. During the appointment, the defendant made a number of requests, particularly in relation to visiting other members of the Islamic community, including Ahmed Hraichie, the father of Bourhan Hraichie, and a number of "brothers" who wanted to see him in the community. It was explained to the defendant that there was a process for vetting people before he could associate with them on his schedule. During conversation, the defendant stated that he believed the highest calling for a Muslim was jihad, which he clarified as "jihad overseas."

[40]

2 November 2014 gaol visit to the defendant

In relation to the applicant's conduct while in custody, the gaol visit which the defendant received on 2 November 2014 deserved particular attention. On that occasion, four younger men arranged to visit the defendant at the Goulburn Correctional Centre. The young men were: 1. Sulayman Khalid, also known as Abu Bakr; 2. Maywand Osman; 3. Ali Al-Talebi; and 4. Abdullah Salihy.
This visit was recorded on CCTV and the video footage was before the Court together with a transcript of what was said at that meeting in so far as it could be heard. I was taken to parts of the video footage during the hearing. A summary together with still photographs from the footage was part of the evidence relied upon by the State.
This visit on 2 November 2014 lasted for over two and a half hours. Having viewed part of the video and reviewed the transcript and the summary document, I was more than comfortably satisfied that it was not correct to describe the visit as "a bunch of men hanging out with each other and chatting away and laughing and just talking with each other" or "just a bunch of guys messing up", as Mr Prince SC submitted.
The visit involved at times one or other of the participants whispering to the defendant, so as not be able to heard on the recording of the visit and at other times some of the men making noises, for example by scraping or tapping a can on the table or singing, to cover what was being said by one of the them to the defendant. Mr Prince in his submissions acknowledged that this conduct was "suspicious" but contended that it did not establish: "anything more than they didn't want to be overheard because they clearly all knew they were being listened to. They could have been talking about anything. They could have been talking about personal problems, or personal issues, or matters requiring spiritual guidance, which were embarrassing that they didn't want to talk about."
The contents of the discussion included references to the Parliament, Government or Ministers, sometimes in disparaging terms, for example: "[Defendant]: … tell that foolish, when I say foolish, imbecile Mrs BISHOP yeah, that we're not Australians, we're Muslims, you can't stop us from wanting to go to a place where it purifies our actions and takes us out of the… (ind)… We have been governed in the… (ind)… for too long, we don't need it anymore, we want our passports, we want our passports, we want our freedom, this is democracy". And at another time, after Mr Osman has a whispered conversation with the defendant, Mr Osman was recorded as saying to the defendant: "Camera, that camera outside the Parliament House."
The transcript of the meeting also recorded as follows: "[Defendant]: May Allah forgive me brother, but if I get out soon, which, Allah willing, I am hoping very soon, if I don't do it, let's just say, I'm going to do it, I'm going to do it …(ind) … brother Allah willing, I don't want to talk too much… If Allah bless me to come out of gaol, I'm going to go and say goodbye to my family and camp outside his frickin' house and whoever wants to join me brother, they can join me, that's what I am gonna do. I'm going to act according to the Sunnah. I'm gonna raise my voice for my brothers." and "[Defendant]: Okay, okay, if this is what you have, if this is what you have here, then you pursue it. But I'll tell you one thing now. You need very, very, very, very good intel. Very good intel. You need hundred percent intel. These are places…(ind) … ([Osman] and [Khalid] whisper in [defendant's] ear) (Loud banging noises continuously in background) [Defendant]: all right, hang on a minute. So you're saying that we'll/will come in… [Osman]: …(ind) … I'm getting …(ind) … [Defendant]: I swear if you listen to your brother Abu Bakr [Khalid] …(ind) … (Loud banging noises continuously in background) [Defendant]: You think so? You sure?" and "[Defendant]: … (jnd)… when I say pigs, I'm talking about pigs, because they are, yeah… (ind)… oh you're saying over there, they're gonna cop it and if they don't get… we know that… (Banging, singing, hard surface being scraped making conversation in distinct) [Defendant]: If you're going to go down that road, you need that other thing I was telling you about as well. You need both because you need to see A and B. Plan B, my beloved, you know Plan B? Everything you do has to have a plan B, … (ind) … you get it? Far out its half-time …(ind) … to say that man. (Indistinct conversation) [Khalid] …(ind) … sing so we can talk, yeah? (Singing resumes)".
It was clear that the four young men regarded the defendant as a mentor, leader or guide in relation to what they were discussing.
Finally, it can be noted that the transcript recorded as follows: "[Defendant]: I've got some advice for myself and you Allah willing. All of us Allah willing, listen up very carefully yeah, you be good at this you, you're good at this, and the reason why I appointed Abu Bakr [Khalid], may Allah reward him … … [Defendant]: What, anyway, yes, the great scholar of Islam ibn Tayymyyla, may Allah's mercy be upon him, may Allah be pleased with this great significant soldier of Allah, Gracious and Exalted is He, yeah, not just a soldier with his pen, he was a soldier with his actions and his tongue'. Are you listening, Abu Bakr?"
This visit was most significant because of the nature of the apparent relationship between the defendant and his visitors and because of what three of the visitors had done or went on to do.
First, Mr Khalid was convicted of conspiring within a short period after the gaol visit, that is between 7 November and 18 December 2014, with others (not including the defendant) to commit a serious terrorism offence, namely doing acts in preparation for a terrorist act or acts, contrary to ss 11.5 and 101.6 of the Criminal Code: see R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365. On appeal, Mr Khalid's sentence was reduced to 20 years with a non-parole period of 15 years, see Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73.
From those judgments, it appears that Mr Khalid was arrested on 23 December 2014. He eventually entered a late plea of guilty. He was 20 years old at the time of the offending and 22 at the time of sentencing. The Police facts in evidence at the sentence hearing described Mr Khalid as the "leader of the group" that conspired to do acts in preparation for, or planning of, a terrorist act or acts. The terrorist act was to involve firearms and was to be a religiously inspired act of terrorism, namely violent Jihad. The specific act or acts and the proposed target or targets were unresolved by the time Mr Khalid was arrested but the general proposal included the killing of a member or members of either the NSW Police Force or the Australian Federal Police and/or attacks upon government buildings.
The facts before the sentencing judge expressly included the following: "1. Sulayman Khalid ("the offender"), [and the other conspirators] adhered to the religious ideology of violent jihad. Specifically, they adhere to the religious ideology of Wahhabi-Salafism. This is the ideology that inspires ISIS (the Islamic State of Iraq and Syria), Al Qaeda and like-minded groups and their supporters. … 3. During the conspiracy period (that is, between about 7 November 2014 and 18 December 2014), each of the conspirators was committed to Islam and they often spoke about it and included it in their daily lives. Whilst the word 'jihad' is often used and understood amongst the wider Muslim community to mean 'spiritual struggle', the conspirators used the term (and possessed material that used the term) to mean 'violent jihad'. 4. During the period of the conspiracy and for some time before, the offender was active in seeking to advance Islam. He had actively proselytised for Islam in the street and posted videos of those activities online .… 5. The offender had publicly displayed his support for the violent jihad espoused by ISIS. One way he did so was by obtaining and wearing clothing with badges and adornments of ISIS. …".
Later in those facts, it was recorded: "75. In a further telephone conversation between the offender and "IM" [one of the conspirators] at 11:58am on 29 November 2014, there was the following discussion of a "party" [which was said to refer to a meeting or terrorist attack]: "IM": "The brother that you gunna meet, are we getting to the party - him? Like, you know what I mean?" OFFENDER: "Yeah, he's gunna have a party, yeah.: "IM": "with us?" OFFENDER: "Yeah. Do you want me to send the greetings to him?" "IM": "Yeah. Have I ever met him?" OFFENDER: "No." "IM": can I know his name?" OFFENDER: "Abu ZAKARIA" [Wassim FAYAD] …"
The facts in that case also referred to Mr Khalid's gaol visit to the defendant less than a week before the conspiracy commenced in the following terms: "88. On 2 November 2014, the offenders [should be "offender"] and three others visited a prisoner called Wisam Fayad [the defendant] at Goulburn jail. During the visit, in response to a question from one of the men "Is Paradise a real or not", the offender answered "100%". He later "I'm the only one with balls". 89. After that jail visit, the conspiracy commenced. The offender was responsible for arranging meetings of the conspirators and others, and encouraged them to meet at his premises at … . They also met in other places such as parks, and from time to time to pray."
Considerable care must be taken with this material apart from the information concerning the gaol visit which was confirmed by the recording and the transcript. The ideological beliefs of Mr Khalid and his telephone conversation with IM were not able to be tested and I attributed substantially reduced weight to this material. Nonetheless, I was satisfied that this material deserved some weight and could contribute, together with other material, to a finding concerning the extent of the risk posed by the defendant.
The defendant continued to associate with Mr Khalid while both were in custody.
Secondly, Mr Osman, who is Mr Al-Ahmadzai's brother, was sentenced to a term of imprisonment of 18 months for three offences of contravening a control order contrary to s 104.27 of the Criminal Code, which I note is not a serious terrorism offence. That sentence expired on 22 November 2020. On 19 November 2020, an order was made imposing an interim supervision order on Mr Osman under the THRO Act: State of New South Wales v Osman [2020] NSWSC 1646. On 23 February 2021, Harrison J imposed an ESO on Mr Osman and directed he comply with the conditions in the schedule to that order: State of New South Wales v Osman [2021] NSWSC 124 at [47].
Thirdly, Mr Al-Talebi was later convicted of attempting to send funds to Islamic State between about July and September 2014 contrary to s 102.7(1) of the Criminal Code, which is a serious terrorism offence. The defendant continued to associate with Mr Al-Talebi while both were in custody.

[43]

The AC ratings gave an indication, in effect, of factors which would affect the weight that should be given to the information. Consequently, those ratings, along with other matters, such as their contents and date, were taken into account when the Court determined the weight to be given to the intelligence documents. Even where there was no such rating given, the factors of both the likely reliability of the source and the validity of the information were matters taken into account, to the extent that they could be ascertained or estimated.
It is not necessary to set out here in detail all of the relevant material in the NSW Corrective Services Intelligence Reports and other intelligence documents. It is sufficient to note that this material included intelligence such as the following, by way of some limited examples (and without attempting to be exhaustive): Date Alleged Incident Report No. AC rating August 2013 A source disclosed that when an identified person got out of gaol he had been told he should contact the defendant who could "hook him up with firearms and explosives" and that the defendant was a member of the "six Pillar" group and a cell leader. The report also stated that open source information suggested that the "Six Pillar" group referred to: IR-13-1120 "A few Muslims, mainly some Kharijite groups in ancient times and members of Egyptian Islamic Jihad recently, have taught that Jihad should be considered the sixth pillar of Islam. In this context, Jihad is viewed as external war against those perceived to be enemies of Islam." AC: F6 5, 6 November 2013 The defendant was on bail at this time and it was reported that: Police Intelligence Information Report Summary (referred on 18 November 2013) "Current information is that [the defendant] is attempting to source cash and firearms in the Auburn area.… [The defendant] may provide false details." 2 January 2014 In custody, the defendant was alleged to have been recruiting inmates to the Muslim faith and asking for group prayer sessions. IR-14-039 AC:C3 January 2014 Possible assault of another inmate because he would not convert to Islam. The defendant was allegedly involved but maintained he was only walking past and did not go into the cell or see the incident. IR-14-0100 AC: F2 4 August 2014 The defendant alleged to have been attempting to convert inmates and identified staff to the Muslim faith. IR-14-1497 AC:B2 12 September 2014 The defendant alleged to have been responsible for converting "the majority" of 13 listed inmates to Islam. The report also stated "It is unclear if any of those inmates hold extremist views or are simply converting as a fashionable event." and "whether they have been induced or threatened cannot be identified at this stage." IR-14-1777 AC: F6 September 2014 Allegations that the Goulburn yard was run under Sharia law and that the defendant was "running Shia hate and violence on Shia inmates" and Mr Al-Ahmadzai recruited inmates and brain washed them to fight in Syria and Iraq. IR-14-1767 AC: F6 and F2

[44]

Throughout the defendant's time in custody there were NSW Corrective Services Intelligence Reports referring to the defendant being involved in converting or attempting to convert other inmates or staff to the Islamic faith and other activities related to his religious beliefs. Some of the cases were alleged to have involved violence in pursuit of conversions or participation in religious activities.
I considered the intelligence documentation very seriously and took into account its nature as "intelligence" rather than purporting to be direct evidence of the commission of offences or similar conduct. I determined the weight to be given depending on the nature of the information recorded, the AC rating where relevant, and the other circumstances of each report, as outlined above.
There was, however, in this case, a substantial amount of other evidence in addition to the intelligence documentation. In these circumstances, I also considered whether the information in the intelligence documentation supported or contradicted what was established by the other evidence. My conclusion was that there were no matters of consequence where the substance of the information in the intelligence documentation was inconsistent with, or contradicted, the findings available based on the other evidence. Indeed, I found that the intelligence documentation, although it should be given only limited weight, for the reasons I have explained, confirmed not only the findings made based on the other evidence but also the ultimate conclusions reached in this matter.
In particular, the intelligence documentation supported, or provided confirmation of, the following findings made: 1. the defendant was a devout Muslim who had an engaging personality that was capable of exerting significant influence over others, especially younger or vulnerable persons, in relation to his particular understanding of the Islamic faith; 2. the defendant was prepared to be aggressive with persons he perceived interfered with his religious beliefs or practices, or with his attempts to convert others to Islam as he understood it; and 3. there was a very substantial risk that: 1. the defendant believed in and was committed to religious principles that promoted or condoned violent extremism, terrorist acts and terrorist organisations; 2. the defendant supported, encouraged, and was prepared to associate with, "Muslim brothers" who committed or sought to commit terrorist acts or who supported terrorist organisations and their activities; and 3. the defendant's support extended to sourcing funds and firearms to be used by others in connection with potential terrorist acts or activities.

[46]

Association with Mr Alqudsi

It has already been found that the defendant associated with Mr Alqudsi when he was photographed with him during the 2012 protest in the Sydney CBD.
In addition, Mr Alqudsi was convicted on seven counts of performing services for persons with the intention of their entering Syria for the purposes of engaging in armed hostilities in that country, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). Adamson J's remarks on sentence in relation to Mr Alqudsi are recorded in R v Alqudsi [2016] NSWSC 1227. Subsequently, a number of the young men were also convicted of offences contrary to s 6(1)(a) Crimes (Foreign Incursions and Recruitment) Act, see for example R v Biber [2018] NSWSC 535 and R v Musleh (No 5) [2018] NSWSC 1927.
It was significant that it was the defendant who provided to Mr Alqudsi, on 13 June 2013 by text message, the names and telephone numbers of young men who were to travel to Syria for the purposes of engaging in armed hostilities there.
Throughout the second half of 2013, the defendant had a large number of telephone conversations with Mr Alqudsi concerning men who might and did travel to Syria and the defendant's role in and contribution to those arrangements. These calls were intercepted and recorded. Adamson J, in her sentencing remarks in relation to Mr Alqudsi, noted that one conversation included coded references to a "soccer game" and a "soccer club" relating to travelling to Syria and engaging in armed hostilities there. During the conversation, there was discussion about the defendant's role in this regard as follows: "Mr Alqudsi [to the defendant]: You're a true - you're a - you're a true leader, brother. You're a true leader. That's what I want to say to you. … Mr Alqudsi: That's what I need, brother. Brother, I need - brother, I need someone like you, okay. Defendant: May Allah … (Indistinct)… Mr Alqudsi: … (Indistinct)… I've got you and I've got brother… (Indistinct)… At the end, but brother no one can - can… (Indistinct)… Because you got - you got the experience, you got the skills, you got the charisma, you got everything. But we can't deal with the emotions. Defendant: No, no, no. Mr Alqudsi: like you use brains before emotions. Defendant: A hundred percent, brother. The knowledge is - is - is what separates us, brother." and "Defendant: I swear by Allah, may Allah bless you! I swear by Allah I love being a part of it, brother. That's the truth."
In another conversation between the defendant and Mr Alqudsi, the defendant explained how he had taught one of the young men how to behave and the conversation continued: "Mr Alqudsi: Call him, Allah willing, it's got to be so. Why? Because I love all the brothers, okay, and they all like to be obedient to you. They have to understand - - - Defendant: Yes. Mr Alqudsi: - - - they have to respect you by the will of Allah, the Most High, because we need to work together for one purpose, for one goal to - - - Defendant: Yes. Mr Alqudsi: - - - for the pleasure of Allah, the Magnificent and Exalted, and that's it, okay." and later: "Defendant: - - - you know what glory be to Allah I'm - I'm very, very jealous that I can't - that I can't be in the game. Mr Alqudsi: Arkie, you helped me coach the rest of the brothers, like we coached these ones, Allah willing, even though they came… (Indistinct)… - - -"
On 6 July 2013, Mr Alqudsi also depended on the defendant for his opinion as to whether one "boy" would be ready if Mr Alqudsi "sen[t] him next week" and whether the defendant had tested another of the young men before.
On 27 August 2013, the defendant and Mr Alqudsi had a conversation in which the defendant said that he was going to obtain $3,000.00 from another person, and offered that money to Mr Alqudsi. In response, Mr Alqudsi said "You keep the money with you" and "I only want the money to be with you". The conversation also included: "Defendant: Keep the three thousand with me. Mr Alqudsi: Just in case, just in case something happens with the parents of Abu Omar [one of the young men]. Defendant: Yeah Mr Alqudsi: This way we can guarantee one brother, that's it."
On 15 September 2013, there was a telephone conversation between the defendant and Abu Bilal in which the defendant spoke of a boy who was going through "a bit of issues himself and he looks up to [the defendant] like a father figure".
On 8 October 2013, there was a further conversation between the defendant and Mr Alqudsi in which funds were discussed in the general context of the young men in Syria. Contact between the defendant and Mr Alqudsi continued in October and after.
On 7 November 2013, there was a telephone conversation between the defendant and Mr Alqudsi apparently concerning the location of one of the young men who had gone overseas. Mr Alqudsi said to the defendant: "Okay all I need from you is just to find out ah please from this guy what's the name of the hotel in what room number is he in and this is something I've asked him five times by the way". After obtaining the man's number from Mr Alqudsi, the defendant said that he would text the hotel name and the room number to Mr Alqudsi. This the defendant did later the same day.
From this material, an appreciation was gained of the very significant ability of the defendant to influence young men and encourage them to engage in activities justified on the defendant's understanding of Islam.

[47]

Association with Mr Al-Ahmadzai

Mr Al-Ahmadzai was involved in the commission of the index offence with the defendant. In addition, Mr Al-Ahmadzai's other activities and associations with the defendant included the following: 1. Mr Al-Ahmadzai sent a letter to Mr Bassam Hamzy, a member of the "Brothers for Life" Group, in which he stated the following regarding his relationship with the defendant: "No one knows him [the defendant] better than I do; I have lost count how many years I've know him for. I met him after I left Jahiliyah & and came to olin. I know his life inside out, things his own wife & 6 children don't know. I have seen him put his life & freedom at risk countless times for Allah. I am a witness to that."; 1. the defendant sought permission, on 30 December 2020, to associate with Mr Al-Ahmadzai's 7-year old son; and 2. Mr Al-Ahmadzai made a number of violent threats, on 10 December 2019, together with the defendant and others, towards the A/Governor and A/Manger of Security at HRMCC.
Furthermore, on 22 August 2014, Mr Al-Ahmadzai was sentenced for an offence of threatening serious harm to a Commonwealth official contrary to s 147(2)(1) of the Criminal Code. It should be noted, however, that this was not relevantly a terrorism offence, but involved the use of a carriage service to menace and harass an official. On 20 February 2015, a yard search at Goulburn Correctional Centre identified newspaper clippings commenting on Islamic State activities in Mr Al-Ahmadzai's "yard bag", the subsequent confiscation of which prompted Mr Al-Ahmadzai to call "Takbir" and raise his arm skyward, followed by inmates responding "Allahu Akbar" in unison. On 28 August 202, Mr Al-Ahmadzai also wrote to Mr Atai in response to this incident and stated: "I'll shed my blood for this din."
While considerable care was taken in assessing the weight to be given to this material, it could not be given no weight and it was consistent with conclusions derived from other evidence. Having regard to the evidence as a whole, it was apparent that Mr Al-Ahmadzai was a man who had a close association and connection with the defendant, and who was also someone whose views and activities were consistent with support for violent extremism associated with a particular understanding of Islam.

[52]

Association with Mr Hraichie

Mr Hraichie and the defendant exchanged six handwritten letters in June and December of 2016.
On 2 August 2019, Mr Hraichie was sentenced by Johnson J for one offence contrary to the Criminal Code and three offences contrary to the Crimes Act 1900 (NSW). The first set of offences concerned one count of committing acts in preparation for or planning terrorist acts, namely attacks on Australian law enforcement officers in support of Islamic State contrary to s 101.6(1) of the Criminal Code, which occurred between 1 November 2015 and 19 May 2016, and one count of intentionally delivering to an officer of NSW Corrective Services a letter threatening to kill the Commissioner of NSW Corrective Services, knowing the contents of that document, contrary to s 31 Crimes Act 1900 (NSW), which occurred between 1 April 2016 and 20 May 2016. The second set of offences occurred on 7 April 2016 while Mr Hraichie was in Mid North Coast Correctional Centre and consisted of one count of wounding with intent to murder and one count of causing grievous bodily harm with intent contrary to ss 27 and 33(1)(b) of the Crimes Act 1900 (NSW). For all four offences, Mr Hraichie was sentenced to total effective sentence of 34 years' imprisonment with a non-parole period of 29 years expiring in 2047.
The offences Mr Hraichie committed on 7 April 2016 are also significant as they apparently occurred in response to the victim making disrespectful comments about Islam, including that he had killed Muslims during a deployment overseas.
Furthermore, while Mr Hraichie remains in custody, after the defendant was released from custody, he sought permission to visit Mr Hraichie's father in hospital.
The communications between Mr Hraichie and the defendant as well as the concern for his family establish the existence of a personal association between them. While only limited weight should be given to the material concerning Mr Hraichie, the fact of the defendant's association with him indicated that this association was relevant to, and supportive of the conclusions otherwise reached as to, the assessment of risk in relation to the defendant.

[53]

Association with Mr Lawrence

Mr Lawrence is presently serving a term of imprisonment for two counts of intimidating a police officer in the execution of duty, which is due to expire on 28 July 2021. Furthermore, on 21 August 2019, Mr Lawrence was the subject of orders, following a preliminary hearing under the THRO Act before Fullerton J, appointing a psychologist and psychiatrist to conduct examinations of him, as well as committing him for 28 days under an interim detention order.
Mr Lawrence has also been the subject of investigations conducted by the NSWPF, which have included the installation of listening devices in his prison cell. One of these conversations from May of 2017 included the following words spoken by Mr Lawrence: "… I will write my daughter a letter saying I am sorry I left her but it was for a greater cause, and to my son, then I will tell them to both become mujahideens, I will tell them to kill the west and to blow themselves up."
On 7 May 2019, Mr Lawrence was also recorded in an exchange with his cellmate stating the following: "It's on you to carry out in every place if you can harm the enemy to carry out and … and you will earn the highest grade. So not just these people. I don't want to go fight, I wanna fight by myself, and be in the highest grade, there's not many people that wanna do what I'm gonna go do. Insh'allah. In the highest levels of Jannah. Allah's made me wanna do this instead of going and fighting with the arm, he's made me wanna be … to revive the Ummah. To revive jihand insh'allah:" and "I have been in the Islamic State for a lot longer than you in the Islamic State, I'm telling you brother."
In July of 2017, Mr Lawrence's phone was seized and found to contain some concerning material, including text messages concerning his possession of various firearms, drug dealing and that he always carried a firearm on his person "ready to blast."
In November 2019, Mr Lawrence and the defendant were involved in an incident in custody, which arose after it was allegedly discovered that religious books on Islam in the facility had been thrown out, that resulted in an inmate protest.
On 14 November 2020, Mr Lawrence had a telephone conversation with his former partner Ms Mariam Tangaroa, in which they discussed plans for their children as well as the defendant's imminent release from custody. In this conversation, Mr Lawrence made clear to Ms Tangaroa his desire for the defendant to have a presence in their children's lives in case anything ever happened to him. Mr Lawrence stated that the defendant could assist Ms Tangaroa in looking after the children, and that he could pass on the defendant's number to her in order to facilitate this if she wished.
It was apparent that Mr Lawrence was a man who advocated support for terrorist acts and violent extremism, and that Mr Lawrence looked up to the defendant and had such respect for him that he sought for him to play a role in the life of his children and assume responsibility for them in case of his death.
Once again, while caution was taken in considering this material, it was consistent with, and supported, other conclusions reached based on different evidence concerning the risk posed by the defendant.

[56]

Affidavits from Mr Fearn and Mr Christmas

The defendant adduced affidavit evidence from Mr Fearn and Mr Christmas, who were men aged 62 and 49 respectively and who lived in the same block of units as the defendant after he was released from custody and while he was subject to the ISO.
Mr Christmas said after meeting the defendant on 14 January 2021 for the first time that: "my instincts told me that [the defendant] was a nice man and I liked him."
On being told the next day that, in order to be able to speak to the defendant, he needed to be vetted, Mr Christmas said that he "nearly fell off [his] chair". Approval for the defendant to associate with Mr Christmas was given on approximately 11 February 2021. At that point, Mr Christmas started a petition and tried to get signatures from people in the unit block so that they could speak to the defendant. He approached approximately six people to sign the petition but stopped doing so because everyone he asked said they did not want to let the government know that they might be supporting the defendant. Finally, Mr Christmas said: "I hold fears for what the government can do to me if they are treating [the defendant] like this. The people that live in our complex are vulnerable people who live in homes provided by Department of Housing."
Mr Fearn's evidence was to a similar effect in that after first meeting the defendant, Mr Fearn's reaction was that they had hit it off straight away so he knew he wanted to become friends with the defendant. Eventually, the defendant was given permission to associate with Mr Fearn. His evidence also contained the following: "I genuinely really like [the defendant] and can't tell you how much his friendship means to me. With had very good conversations and I really enjoy his company. [The defendant] deserves some human rights and I would like him to get them back. I like [the defendant] because we are both helping and learning from one another. We talk about life and human beings, what is good and the world around us. I discuss what I read and do google searches. It's always a pleasant conversation and I leave [the defendant's] company in good spirits and happy."
These two men had known the defendant for about one month or less.
This evidence illustrated the charismatic and engaging aspects of the defendant's personality, as well as being consistent with the observation in PRISM report dated 12 November 2018 prepared by the psychologists Matthew Wade and Stephanie Scott-Smith that: "In early interactions with strangers, [the defendant] may be viewed as interesting, confident and well-adjusted. However, with more exposure, others may perceive him as arrogant, hostile and domineering."
Rather than assist the defendant's case, this material suggested that the defendant's ability to engage with, influence and persuade persons who might be young or vulnerable was very significant. When this ability was associated with beliefs or commitments which included violent extremism and violent Jihad, on the defendant's understanding of Islam, there was a heightened risk that the defendant could influence such persons to commit or support the commission of terrorist acts or to support terrorist organisations.

[57]

Conclusion on assessment of risk

In reaching conclusions concerning the assessment of risk, all of the relevant factors identified in s 25(3) were taken into account in light of all the evidence that was before the Court, with caution being exercised in relation to the material that deserved little or no weight. The assessment of risk in the present case did not involve a process of syllogistic reasoning. As noted above, it involved an evaluative judgment to be made having regard to the matters identified in s 25(3) of the THRO Act and any other relevant information.
The matters and information taken into account, with the help of the written and oral submissions of the parties, have been referred to in the paragraphs above at some length. It is sufficient to note, in summary form, that the evidence viewed as a whole established, inter alia, that: 1. there was a very significant risk that the defendant held and holds beliefs, including his understanding of Islam, which cause him to support violent extremism and terrorist organisations, to condone and promote the commission of terrorist acts by others and to have negative or disparaging views concerning Australia's democratic institutions and democratically established laws; 2. the defendant was and is an engaging, charismatic person who is able to engage with and exert significant influence over others, especially younger or vulnerable adults, and may be able to convince them to share his views or beliefs and to induce, incite or encourage them to participate in activities and organisations he supports; 3. the defendant has acted as a mentor or leader to younger persons including in relation to matters relating to the Islamic faith, as he understood or understands it; 4. the defendant was involved in recruiting, selecting or influencing young men, some of whose names and contact details he supplied to Mr Alqudsi, to travel to Syria to engage in fighting in support of ISIS or one of its related organisations or emanations; 5. the defendant received a visit or visits while in custody from, and had discussions with, young men, some of whom went on to commit a serious terrorism offence, an offence of violence or related offences; 6. the defendant is likely in the future to attempt to have persons with whom he comes into contact adopt his understanding of the Islamic faith; 7. the defendant was and is also susceptible to the influence of other persons, especially those he regards as "men of knowledge" or Islamic scholars, and if such persons endorsed terrorist acts it is likely that the defendant would accept such endorsements and encourage other persons to act on them; 8. the defendant was and is closely associated with men who demonstrated support for terrorist organisations and has, himself, expressed support for such organisations, generally only being prepared to condemn such organisations in so far as they harmed other Muslims; 9. the defendant himself committed an offence involving a substantial degree of violence associated with promoting adherence to Islam, as he understood it, and he influenced and persuaded other young men to participate in the offending; 10. whilst in custody and subsequently the defendant has continued to seek to be associated with others who have committed serious terrorism offences and sought to maintain contact with their families; 11. the defendant is unlikely in the future to dissociate himself from, or refuse to associate with, persons whom he considers "Muslim brothers" and who support terrorist organisations or who commit or seek to commit serious terrorism offences; 12. there is a significant risk that the defendant has access to or means of accessing firearms and funds that he would make available to others in order to commit a serious terrorism offence or to assist in training involving a terrorist organisation; and 13. there is a significant risk that the defendant's apparently pro-social statements concerning his beliefs and commitments and his understanding of Islam were and are not reliable because of being either deliberately or unintentionally misleading.
The evidence established that the principal future risk posed by the defendant was not that he would himself engage in a terrorist act in contravention of s 101.1 of the Criminal Code, although that possibility could not be ruled out. Rather, it was that the defendant would commit a serous terrorism offence, as defined in the THRO Act, by, for example and without attempting to be exhaustive: 1. aiding, abetting, counselling or procuring the commission by others, such as younger or vulnerable persons whom he mentored or over whom he was able to exercise significant influence, of a serious terrorism offence, contrary to s 11.2 and provisions of the Criminal Code such ss 101.1, 101.2, 101.4, 101.5 and 101.6; 2. providing training to such persons, or possessing things, including firearms, or collecting documents, connected with preparation for, the engagement of a person in, or assistance in, a terrorist act, contrary to ss 101.2. 101.4 and 101.5 of the Criminal Code; 3. recruiting such persons to join or participate in the activities of a terrorist organisation, contrary to s.102.4 of the Criminal Code; 4. providing training to such persons, or participating in training such persons, with a terrorist organisation, contrary to s.102.5 of the Criminal Code; 5. getting funds to or for a terrorist organisation, contrary to s.102.6 of the Criminal Code; and 6. providing to a terrorist organisation support or resources, including funds and firearms, that would help the organisation to prepare, plan, assist in or foster, the doing of a terrorist act, contrary to s 102.7 of the Criminal Code.
The likelihood of the risks coming to fruition, if the defendant were at liberty and not subject to an ESO, and the very serious potential consequences if some of those risks actually materialised before the events could be prevented, taken together, established that the community would not be adequately secure from harm if the defendant were not subject to an ESO. In this regard, the safety of the community was required to be the paramount concern, by virtue of s 25(2) of the THRO Act. In all the circumstances, it was accepted that the relevant future risk posed by the defendant was "unacceptable" within the meaning of s 20(d) of the THRO Act.
Accordingly, having regard to the evidence as a whole and the findings set out in these reasons for judgment, the Court was satisfied to a high degree of probability that in the circumstances of the present case the defendant posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO.
In light of Dr Ellis's evidence, it was accepted that a period of two years was appropriate for the term of the ESO.
The hearing in this matter did not end until the evening of the day before the ISO was due to expire. In these circumstances, the parties did not have the opportunity to make submissions on the appropriate conditions to be included in an ESO, if the Court determined that such an order should be made. As a result and given the conclusion that an ESO should be made, the conditions previously imposed under the ISO were continued in their then current form and orders 3 and 4 were included in the orders. By orders 3 and 4, the defendant was given the opportunity to seek to have the conditions varied within a relatively short time and a timetable was set for the preparation and hearing of such an application.
For all of these reasons, the orders set out above were made on 27 February 2021.

[58]

SCHEDULE CONDITIONS OF SUPERVISION Wassim Fayad PART A: SUPERVISION, MOVEMENTS & REPORTING

The defendant must submit to the supervision and guidance of any Enforcement Officer responsible for the supervision of the defendant for the time being and obey all reasonable directions of an Enforcement Officer (including in respect of providing a schedule of movements).
The defendant must be available for interview at such times and places as an Enforcement Officer (or the officer's nominee) may from time to time direct.
The defendant must truthfully answer questions from an Enforcement Officer for the purpose of administrating this order about: i. where he is or has been; ii. where he is going or was going; iii. who he is with or was with; and iv. what he is doing or was doing.
The defendant must carry at all times a specified approved mobile phone and: i. ensure that the defendant is available to answer any call from an Enforcement Officer or, as soon as reasonably practicable, return a call that the defendant was unable to answer; and ii. comply with any reasonable directions given by an Enforcement Officer in relation to the mobile phone. PART B: VEHICLES
The defendant must not purchase, hire or drive any vehicle without the prior approval of an Enforcement Officer.
The defendant must tell an Enforcement Officer of the colour, make, model and registration of any vehicle registered to the defendant or that the defendant intends to hire or drive. PART C: FINANCIAL OVERSIGHT
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by an Enforcement Officer.
The defendant must not enter into a transaction for more than $500, including through an agent or a third party, without informing an Enforcement Officer.
The defendant must not transfer any funds outside Australia without informing an Enforcement Officer. PART D: ELECTRONIC MONITORING
The defendant must wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment. PART E: ACCOMMODATION
The defendant must live at an address approved by an Enforcement Officer and notify an Enforcement Officer of any intention to change the defendant's address or living arrangements.
The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.
The defendant must permit an Enforcement Officer to visit the defendant at the defendant's residential address at any time and, for that purpose, to enter the premises at that address.
The defendant must be at his approved address between 9.00pm to 6.00am unless other arrangements are approved by an Enforcement Officer.
The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of an Enforcement Officer. If another person that the defendant is approved to reside with permits a third party, whom does not reside at the address, to enter and remain, or to stay overnight, as soon as the defendant becomes aware of such third party's presence in the home he must notify an Enforcement Officer.
The defendant must not sign any lease, mortgage or hire agreement (e.g. storage facilities) without prior approval of an Enforcement Officer. PART F: PLACE & TRAVEL RESTRICTIONS
The defendant must not frequent or visit any place or district specified by an Enforcement Officer.
The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
The defendant must not be in possession of any passports and must not attempt to apply for any passports.
In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to an Enforcement Officer as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed. PART G: SEARCH & SEIZURE
The defendant must submit to the search by an Enforcement Officer of the defendant's person and residence and the search and seizure of the defendant's vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the defendant's control.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order. PART I: WEAPONS
The defendant must not possess or use any of the following: i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, ii. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998, iii. a spear gun, iv. an explosive substance intended, by the defendant, to be used in an explosive device, v. a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the defendant, to be used as a fuse or detonator for an explosive device (as the case may be).
The defendant must not possess or use any of the following, without an Enforcement Officer's prior approval: a. any article or device, not being such a firearm, that is designed or intended as a defence or anti-personnel spray and that is capable of discharging by any means: i. any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or ii. any substance capable of causing bodily harm. b. a knife, machete, sword or any other device that consists of a single- edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; c. any other implement made or adapted for use for causing injury to a person; d. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or e. a laser pointer; or f. A digital blueprint for the manufacture of a firearm or a prohibited weapon on a 3D printer or on an electronic milling machine. PART J: PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT, COUNSELLING & MEDICAL TREATMENT
The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an Enforcement Officer.
The defendant must notify an Enforcement Officer of the identity and address of any healthcare practitioner that he consults.
The defendant must attend, upon the direction of an Enforcement Officer, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify an Enforcement Officer immediately if he ceases to take any medication referred to in the above condition.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with an Enforcement Officer. PART K: EMPLOYMENT, VOLUNTEERING & EDUCATION
The defendant must notify an Enforcement Officer of any intention to change the defendant's employment if practicable before the change occurs or otherwise at his next interview with an Enforcement Officer.
The defendant must not start on the defendant's own initiative any job, volunteer work or educational course without the approval of an Enforcement Officer. PART L: COMMUNICATION, INTERNET USE & ELECTRONIC DEVICES
The defendant must obey any reasonable direction by an Enforcement Officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information).
The defendant must not use any of the following items unless disclosed and approved for use by an Enforcement Officer: a. Usernames other than "Wassim Fayad" b. Internet account (including email addresses, internet service provider accounts, social media accounts, online communities) c. Devices that have the ability to access the internet d. Passwords (including encryption codes) e. Applications (including instant messaging services)
The defendant must advise an Enforcement Officer of any change to any of the items listed above immediately.
The defendant must not delete, attempt to delete or clear data held on any of the items listed above without the prior consent of an Enforcement Officer.
The defendant must consent to an Enforcement Officer (or any other person requested by an Enforcement Officer) to remotely inspect any internet account used by the defendant in monitoring compliance with this Order.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses and usernames, as well as any relevant passwords (including encryption codes) used by the defendant, and the nature and details of any internet connection used by the defendant, as directed.
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with an Enforcement Officer. PART M: ASSOCIATIONS
The defendant must not associate (including using third parties) with any person or persons specified by an Enforcement Officer, whether face to face or by written correspondence or electronic means.
The defendant must inform an Enforcement Officer of the identity of any person with whom he does, or is likely to, regularly associate.
If the defendant starts an intimate relationship, he has to tell an Enforcement Officer.
The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with other persons or with organisations advocating support for engaging in any terrorist acts.
The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person held in custody or with any person he is aware is subject to a control order, on parole, or otherwise subject to a supervision order without prior approval of an Enforcement Officer.
The defendant must obtain written permission from an Enforcement Officer prior to joining or affiliating with any club or organisation. PART N: IDENTITY & APPEARANCE
The defendant must not change his name or use any other name without notifying an Enforcement Officer.
The defendant must not obtain or change any form of identification without prior approval from an Enforcement Officer.
The defendant must let an Enforcement Officer photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
The defendant must not significantly change his appearance without the prior approval of an Enforcement Officer. PART O: EXTREMISM
The defendant must not engage in any act or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.
The defendant must not purchase, possess, access, obtain, view, participate in or listen to: (a) extremist material; or (b) other material as directed by an Enforcement Officer for reasons related to concerns regarding violence or for reasons related to his risk of committing a serious terrorism offence. PART P: DEFINITIONS In these conditions: "CSNSW" means Corrective Services NSW. "Defendant" means Wassim Fayad, also known as Fadi Alameddine, Fadi Allemaddine, Fred Toufic Allemaddine, Fadih Allemaddine, Abu Zakariyah and Abdul Najame, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. ''Enforcement Officer" means a Corrective Services Officer or Police Officer. Extremist material" means:
any material that a reasonable person would understand to be: a. directly or indirectly encouraging, glorifying, promoting or condoning hate speech, terrorist acts or violent extremism; or b. seeking support for, or justifying, the carrying out of hate speech, terrorist acts or violent extremism; or
material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation. Examples of 'extremist material' include:
articles, images, speeches or videos that promote hate speech or violent extremism;
statements or posts made on social media, chat rooms or blogs that encourage hate speech or violent extremism;
content encouraging people to commit acts of terrorism;
websites created or hosted by terrorist organisations;
terrorist training materials;
suspicious content regarding use or sale of chemicals online; and
videos or images of terrorist attacks or acts of violent extremism; "Material" includes:
any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes:
A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. "Terrorist act" has the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where:
The action: a. causes serious harm that is physical harm to a person; b. causes serious damage to property; c. causes a person's death; d. endangers a person's life, other than the life of the person taking the action; e. creates a serious risk to the health or safety of the public or a section of the public; or f. seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: i. an information system; ii. a telecommunications system; iii. a financial system; iv. a system used for the delivery of essential government services; v. a system used for, or by, an essential public utility; and vi. a system used for, or by, a transport system; and
the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;
the action is done or the threat is made with the intention of: a. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or b. intimidating the public or a section of the public; and
the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person's death, endanger the life of a person, or create a serious risk to the health and safety of the public. "Terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State / ISIS and Jabhat al Nusra.

State of New South Wales v Fayad

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