[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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Ex Tempore Judgment
LEEMING JA: The applicant, the State of New South Wales, moves on a notice of motion filed at 5.29pm yesterday for orders "staying or suspending" the operation of the orders made by Fagan J on 31 October 2018.
The effect of such an order will be that an Interim Supervision Order made originally by Campbell J on 2 August 2018 following a contested hearing (for reasons given in State of New South Wales v Naaman (No 2) [2018] NSWSC 1329), and thereafter extended twice by consent by Bellew J sitting in the Common Law Division on 28 August 2018 and 25 September 2018, will continue in operation following its suspension in circumstances I am about to disclose.
Under the legislation as presently enacted, an Interim Supervision Order such as that made by Campbell J and extended twice by Bellew J may not operate for a period longer than three months. Argument before me has proceeded on the basis that it cannot be further extended. There remain 25 days of that order which have been suspended pursuant to s 28(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act").
On 29 September 2018, Mr Naaman was arrested by New South Wales police and charged with five counts of failing to comply with various conditions of that order. Before me today is the fact sheet that was tendered in the Local Court at Bankstown on 12 November earlier this month when Mr Naaman was sentenced for a period of imprisonment of two months (which was backdated) and which will expire on Sunday.
The breaches involved the purchase of a vehicle (contravening a condition that Mr Naaman not transfer money or monies worth over the value of $500 without the permission of his Enforcement Officer ("EO")), and then essentially driving that car without disclosure to his EO contrary to the approved schedule of movements and failing truthfully to answer questions asked by the EO. By reason of the electronic monitoring to which Mr Naaman was subject, he was apprehended by police relatively shortly after acquiring the car, arrested and taken into custody. The State has asked me to take into account one paragraph of the statement of facts, which occurred upon his apprehension by police and is as follows:
"The accused was spoken to about leaving work early to return home. At this point in time the accused became argumentative and very aggressive towards police. The accused threatened to cut his electronic monitoring device off and go underground. He further stated, 'Fuck you', (directed to a sergeant) and, 'Fuck the Supreme Court'."
The consequence of the period of imprisonment which will come to an end this Sunday is, as I have indicated, that the second extension of the Interim Supervision Order was itself suspended by operation of s 28(6) of the Act. Hence the potentially deceptive simplicity of the application sought by the State, which is to stay or suspend the operation of Order 2, made by Fagan J (the primary Judge) on 31 October 2018. That order was that:
"The interim supervision order made by Campbell J on 2 August 2018 and last extended by Bellew J on 25 September 2018 is discharged forthwith."
That order was consequential upon the primary judge's dismissal of the State's application for an Extended Supervision Order for a period of (I think) three years, following a hearing which occupied two days and in a reserved judgment of some 102 paragraphs: State of New South Wales v Naaman (Final) [2018] NSWSC 1635.
The State's right of appeal is conferred by s 53 of the Act, and its appeal has been brought within the 28 days specified by s 53(3). It is very much to be regretted that this application, no differently from many under this and cognate legislation for supervision and detention orders following the serving of the entirety of a term of imprisonment, has been delayed so that it requires determination in circumstances which are, in a real sense, artificially urgent. The State's dissatisfaction with the decision of the primary judge is something that it has been aware of since the decision was handed down on 31 October 2018. Indeed, the evidence before me is that senior counsel and junior counsel were retained on that day to prepare an advice as to the prospects of an appeal.
Senior and junior counsel for the State who appeared on the application before the primary judge and on earlier applications have not appeared before me. The application before me needs to be determined no later than midnight tomorrow, Saturday 24 November 2018. All counsel at the Bar table, most of whom as I understand it have been briefed for less than 24 hours, have constructively accommodated the extreme expedition that has been required by the delay on the part of the State in bringing this application earlier than has occurred.
The dissatisfaction that will be evident from the previous paragraphs is not merely, indeed it is not even primarily, directed to the circumstance that the Court has to determine a matter involving the liberty of an individual on next to no notice. It is also directed to the position of Mr Naaman himself who, as far as the evidence discloses, until late yesterday afternoon was unaware that the State was seeking to challenge the victory which he had achieved following a final hearing last month.
On the other hand, credit must be given to the counsel appearing for both sides for the constructive manner in which they have assisted me in resolving an issue which I have found, as I said during the hearing, far from straight-forward. Both counsel have expressed a preference for me to give here and now what invariably will be rough and perhaps slightly abbreviated reasons for the conclusion I have reached on the outcome of the motion.
It is important that I provide some procedural context at the outset. The State's appeal, which was filed either late yesterday evening or early this morning, has been accorded by this Court the extreme degree of expedition which it warrants. Directions - which were entirely consensual as it turns out - will result in that appeal being heard on 11 December 2018 (a little more than a fortnight away) and preceded by what on the face of the timetable should be an orderly exchange of written submissions. The hoped for outcome is that the Court having heard the final appeal will be able to either determine whether the decision of the primary judge is unaffected by error or, if it is, either remit the application for redetermination to a judge in the Common Law Division or itself impose the Extended Supervision Order which is sought, all of that to take place before 18 December this year.
I mention all of that in order to emphasise the nature of the balancing exercise that falls for me to determine today. Put crudely and indeed a little simplistically, the question is whether, for the next 25 days, Mr Naaman following his release from prison on Sunday (which will happen in any event) should be subject to the same intrusive physical and electronic monitoring under the conditions of the order to which he was subject from the period of 2 August 2018 until his most recent arrest, those terms expiring subject to the success of the State's appeal in any event on 18 December. Alternatively should he be released without being subject to restriction but at all times knowing that there will be a final hearing of his appeal on 11 December, in which the State seeks the imposition of a supervision order for a period of (I believe) some three years.
Section 46 of the Supreme Court Act 1970 (NSW) gives power to a single judge of appeal to grant interlocutory relief pending appeal such as the nature of that sought by the State. The State has submitted that in the event that I were persuaded to accede to its motion, then the result of staying the operation of the order of the primary judge discharging the Interim Supervision Order made most recently on 25 September 2018 was for its operation thereafter to spring back into force. No contrary submission was made by the respondent in this Court to that operation of the orders.
The point not being the subject of submissions, I confess I am not entirely persuaded that the position is quite so simple as the State put forward as to the operation of the granting of a stay, bearing in mind that what occurred on 31 October 2018 was then and there the discharging of an extant Interim Supervision Order. That said, the State, with commendable and appropriate candour, embraced the proposition that this application in no way turned upon some question of technical or administrative ease and fully acknowledged the seriousness of the interests which were at play.
I am confident that I have power to make orders achieving the outcome propounded by the State, and I note that in State of New South Wales v Donovan [2015] NSWCA 273, the President, was faced with a slightly different and, on its face, more complicated position, where the judge at first instance had refused an application for a Continuing Detention Order under the cognate legislation (the Crimes (High Risk Offenders) Act 2006 (NSW)), but had granted an Extended Supervision Order. Pending appeal, the President stayed the latter and put in place an Interim Detention Order for a very limited period of time to preserve the position pending appeal. I will return to this point subsequently in these reasons.
There was no dispute about the substantive principles informing an application such as this. Mr Naaman, the successful litigant to a final hearing which is the subject of an appeal brought as of right by the State, is prima facie entitled to enjoy the fruits of that success: see, for example, Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. However, the State, no differently from any other appellant enjoying a right of appeal, does not need to establish some special or exceptional circumstances in order to obtain interlocutory relief. Broadly speaking, it is sufficient if the State can make out a case that is appropriate for interlocutory relief to maintain the status quo.
The State's notice of appeal contains two grounds, although the second has in substance six sub-grounds. I do not intend in this oral judgment, to fully summarise what on their face appear to be the careful reasons for judgment of the primary judge, nor shall I attempt to summarise all aspects of the legislative regime. It will be sufficient to focus upon the dispositive aspects of the reasons of the primary judge. Argument in this Court was directed primarily to s 20(d) of the Act, which sets out the fourth element required for the making of an Extended Supervision Order as follows:
"The Supreme Court is satisfied to a high degree of probability that the offender poses an unaccepted risk of committing a serious terrorism offence if not kept under supervision under the order."
The primary judge had to address:
1. a lengthy criminal record and custodial history of the respondent;
2. evidence (which appears to have been largely uncontroversial) as to the early outset of use of illicit drugs (including cannabis from 12, cocaine from 14, injected heroin thereafter and the fact that he has continued to use drugs throughout his adult life including methamphetamine from 2010) together with substantial evidence of serious mental illness, including a diagnosis of chronic schizophrenia as well as an assessment of cognitive ability which placed him in the "low average" range;
3. a history of imprisonment which has been distinguished by acts of violence both committed upon him and sought to be committed by him upon others in custody and prison officers;
4. acts of violence outside the prison system on those occasions when the applicant has been released either on parole or following the conclusion of the sentences imposed upon him, and
5. the psychological or psychiatric evidence that was commissioned in accordance with the provisions under the Act.
Significantly for present purposes, there was also evidence, aspects of which have been redacted in the reasons for judgment, as to statements that, in more recent times (in 2016) the respondent has expressed views which are sympathetic to those fighting the Syrian regime, views expressing desires to "get out and go overseas" and a statement that, "I have a contact in Lebanon who can take me over to Syria so I can fight against the Syrian government and against Hezbollah." The primary judge also had regard to evidence that, in breach of a condition of parole, the respondent travelled to Syria, although his Honour observed that "there is no evidence that he proceeded to fight in Syria or to attempt to do so": [73].
In what I have just said I have not done justice by any means to the factual circumstances presented by this application, but I hope I have said sufficient to explain the conclusion reached by the primary judge that the defendant's propensity to reoffend and commit further violent offences placed him in the high risk category: [80]. His Honour gave a qualification (at [81]):
"[T]he qualification that on the basis of his record the level of violence he may perpetrate is likely to be of a relatively low order. The pattern of the defendant's life is so consistent that it must be regarded as a high probability that, upon release from prison, he will again commit some form of property or dishonesty offence and that when confronted with police intervention he will react violently. This expectation is reinforced by the consideration that his schizophrenia is a lifelong disorder for which he does not cooperate in treatment when at liberty. Further, his personality traits of aggression and quick temper make it likely that his history will continue to repeat itself and that constructive and effective rehabilitation is a remote and probably unrealistic possibility."
His Honour then reiterated the point at [82]:
"The only mitigating consideration with respect to this bleak forecast is that the defendant's past violence has not been of a high level and has not been premeditated. He has not used violence in furtherance of other crimes but, for the most part, only in reaction to being caught. He has not pursued violence for its own sake nor for any form of psychopathic gratification."
The primary judge observed, and the State took no issue with the observation, that Mr Naaman falls outside the regime established by the Crimes (High Risk Offenders) Act: [83] and [84].
The primary judge's ultimate conclusion was framed at [98] as follows:
"As best I am able to judge on the material before the Court and with such assistance as the expert witnesses have been able to give, I do not consider that the defendant, in the absence of an extended supervision order, poses a significant risk of perpetrating violence in furtherance of his religion in a manner which would constitute a 'serious terrorism offence.' To the extent that he poses any risk at all of committing such an offence I do not think it likely that it would involve an act of really serious violence towards any individual or group. To the extent that the defendant poses any risk of committing a serious terrorism offence and of it being one with grave consequences for the safety of one or more members of the public, I do not consider that the risk could be regarded as unacceptably high. In forming these views I have treated as the paramount consideration the safety of the community, in accordance with s 25(2)."
There was adduced before me by neither side any fresh evidence bearing upon the behaviour, conduct or condition of the respondent subsequent to the judgment of the primary judge.
Mr Bourke of Senior Counsel who appeared with Mr Edwards (the latter having appeared at first instance) in this Court made it plain that he opposed the continuation of the regime for the last 25 days, and that in the event he was unsuccessful in that endeavour, he wished further to be heard on some of the particular conditions. However, he had no evidence that any of the conditions would be especially onerous, and was content to preserve his right to apply on short notice in the future.
The opposition to the continuation of the Interim Supervision Order focused heavily upon what they said was the weakness of the grounds of the appeal. I should say at the outset that I did not regard this, based on such submissions as I have had, (and of course, I have had no access to any of the evidentiary material which was before the primary judge) as an especially strong appeal. That said, that is not the test that requires to be satisfied on an application such as this. I do not propose to express any concluded view as to the success or failure of any the grounds, nor do I propose to deal exhaustively with all of them.
The State maintained that there was a departure, which was not merely a departure from the text but rather of significance, in the dispositive paragraph [98] which is reproduced above. On one view, the State contends that there was a conflation by the primary judge of the level of satisfaction to which the Court is required to reach, and whether or not the risk of committing a serious terrorism offence is one that is unacceptable. The difficulties to which the State pointed were his Honour's reference in the first sentence to whether Mr Naaman posed a significant risk of perpetuating violence, whether there was a likelihood that any act would involve "really serious violence towards any individual or group," and whether that risk could be regarded as "unacceptably high."
There is force in what is said against this, in that when the reasons for judgment are read as a whole, his Honour was expressing the fact that he was not satisfied of the high test posed by s 20(d) of the Act. However, I do not think that it is unarguable that in formulating the test in the way that his Honour did, the primary judge failed to have regard to the question whether he could be satisfied to a high degree of probability that there was a low risk of committing something that satisfied the definition of a serious terrorism offence which low risk, nonetheless, was unacceptable.
The force of that omission is driven by his Honour's finding, which is plainly in accord with not only the expert evidence before him but Mr Naaman's criminal record, that there was a high degree of probability that upon release Mr Naaman will reoffend, and when confronted by police, will react violently. That falls within the scope of ground 1 of the notice of appeal.
Secondly, the respondent contended with some force to the proposition that grounds 2(a) and 2(b) were inconsistent, and in reply Mr Emmett acknowledged as much and flagged an intention to review both of those views. There is, however, in my view, some force in ground 2(b), which is focused upon paragraph [74] of the reasons of the primary judge. That paragraph is as follows:
"The plaintiff does not contend that the defendant has ever expressed an intention to carry out on Australian soil any act of violence for the purpose of intimidating the Australian public or an Australian government. It is not suggested that he has ever displayed a willingness or desire to perpetrate violence in this country for the purpose of advancing Islam."
It seems at least reasonably arguable from a portion of the transcript of Senior Counsel for the State who appeared before the primary judge addressing in final submission (p 133 of the transcript of 10 October 2018), that paragraph [74] is erroneous. After referring to the risk of Mr Naaman committing a terrorist act in Syria, Mr Agius SC then stated that "our case is not limited to the risk of him committing a terrorist act in Syria, given his paranoia and schizophrenia ...", and then added, "There is also a risk that he could commit such an act in Australia".
Of course the reasons need to be read as a whole, and it may well be the case at a final hearing of the appeal that any error in paragraph [74] turns out to be immaterial. However, it is not without significance that the immediately following paragraph commences, "This is significant", and then introduces a contrast in the demonstrated conduct of the respondent with the conduct of offenders who have been convicted of terrorism related offences in Australia. In short, to the extent that there is an error in paragraph [74], of which the State complains in ground 2(b), it is, on its face, something which was regarded as significant by the primary judge in his reasons.
Thirdly, by ground 2(e)(i) of its appeal, the State maintains that there was error in the way that the primary judge considered one aspect of the expert evidence of Dr Kerri Eagle. Her evidence was subject to a qualification. Her written opinion was partially reproduced [93] as follows:
"[The defendant] has few risk factors for imminent violent extremism. The most significant risk factors for potential extreme violence are the reports that he wanted to travel to Syria to fight for the Islamic State and his threat to 'bomb' the correctional centre. It is difficult to draw any firm conclusion as to the level of risk, particularly given that the veracity of some of the witness information is unclear."
However, the State maintained that the reference to some of the "witness information" was a reference to the witness's name who has been redacted, who was cross examined before the primary judge and led to the finding at [70] that he was "entirely credible", and that there "appeared no element of exaggeration in what we attributed to [the respondent]".
I am conscious that, as was emphasised by Mr Bourke, that it is one thing for there to be a likelihood to reoffend upon release, it is a very different thing to be satisfied in accordance with the high degree of probability required by s 20(d) that there is a risk not merely of reoffending but rather "unacceptable risk of committing a serious terrorism offence".
The State's submissions were attuned to that distinction. The scenario that was presented to me was the likelihood of reoffending, coupled with the likelihood of subsequently being confronted with police, and then the risk of reacting violently in the name of religion, which was something to which Dr Eagle adhered when giving oral evidence and was reproduced by the primary judge at paragraph [95]:
"So one of the factors that ... has been associated with people who have committed violent extremist acts has been having a personal grievance or outrage. And that has been considered to be quite a significant risk factor associated with ... a lot of acts of violence associated with religion. And so if a person has already paranoid or persecutory beliefs and this is fuelling their sense of anger and outrage that they're being persecuted by a third party such as police or government, then that sense of personal grievance can also increase... [T]he combination of factors would suggest that yes, his risk of say responding to ... this grievance in the context of being unwell and feeling persecuted might increase his risk of acting violently in the name of a religion."
As I said at the outset, it is not for me to determine whether or not any of these grounds are made out. However, what I have said, which focuses upon the grounds of appeal which were most prominent in the submissions before me this morning, suffices to require me to reject the respondent's submission that this is an appeal which is so weak that no interlocutory relief is warranted.
I turn to the balancing exercise which is required in determining what is to happen for:
1. the next 16 days between Mr Naaman's release this Sunday and the hearing of his appeal on Tuesday 11 December, and
2. the seven days thereafter following which the order made by Bellew J on 28 September 2018 will of its own force expire.
As I said, neither side relied upon any evidence. The State pointed to what was found in the reasons of the primary judge at paragraphs [81] and [95], both of which have been reproduced above, and said that notwithstanding the prima facie entitlement of an offender who has served his time and has succeeded on a final basis at trial to enjoy his liberty, this was a case where the status quo, reflected in the form of the Interim Supervision Order which had been put in place from 2 August 2018 until his apprehension on 29 September 2018, should continue in place.
The respondent submitted that no regime should be put in place, and emphasised with, if I may say so, a deal of force, a point which was also recognised by the primary judge at paragraph [99] which relevantly provides as follows.
"As required by s 25(1)(e) and (h) I have considered the practicality of managing the defendant under an extended supervision order. As shown by his conduct during the brief period while the defendant was under an interim supervision order (see [3] [4] above) and consistently with his lifetime habits of non compliance and conflict with authority, the implementation of an extended supervision order would be fraught with difficulty. I do not consider that would be a reason for not making such an order if the circumstances of the case otherwise justified it. However it would dictate that the conditions of the order should be looser than those which were imposed on an interim basis. A balance would have to be struck between maintaining reasonable supervision and, on the other hand, unnecessarily multiplying occasions for conflict."
Mr Bourke referred to what occurred in September of this year, as well as what occurred earlier involving breaches of parole by his client, and pointed to the possibility that the effect of putting in place such orders might be a possibility or a probability of their breach leading to his further incarceration, and that was something which was wholly outside of the thrust of this regime directed as it is to terrorism related offences. I confess that is the matter that has troubled me most because the real difficulty with this case, as it seems to me, is the mental illness and the cognitive deficiencies of the respondent.
Ultimately, in circumstances where, as I have concluded (contrary to the submissions of the respondent) that the State's appeal is reasonably arguable, the question as to the appropriateness of the extension of the status quo reflected by the interlocutory relief prior to final hearing is principally affected by three matters. The first is that the same regime was put in place in August and was (as is customary in such cases) extended by consent on two occasions. The second is the absence of evidence that has been adduced by either side to displace the third matter, which is the ordinary operation of the Act; namely, that the order should continue for the period specified, with the timing stopped for such period as the subject of the order is in prison.
It is a very serious thing for an offender who has served the full term of imprisonment imposed by a Court to have his liberty further curtailed by orders such as these. But in the circumstances of this case, the curtailment is no different from that which had been put in place for the two months prior to 29 September 2018 and, especially, it is a curtailment which is strictly limited in time to 25 days starting from Sunday, and any individual condition will be able, by the orders that I propose, to be the subject of an application for variation or discharge.
There is also a further matter which is very prominent in my mind. This is not the case, such as many, where an offender is to be released into the community, in circumstances where there is no continual curial supervision. This is a case, as Mr Naaman must know from all that has happened today and which I have no doubt that his solicitors and counsel who have represented him ably today will inform him, where his conduct will be scrutinised by the Court of Appeal on 11 December 2018. That is just over a fortnight away. It is overwhelmingly clear to him and to anyone else that he must do his utmost to abide by the conditions which will be imposed for the limited period of time that they will operate. For all of the seriousness of the hearing which has taken place from 9 o'clock this morning, with submissions and evidence taking slightly in excess of two and a half hours, the stakes for Mr Naaman and the State on 11 December are far higher than this. Indeed, it is because the stakes today are so much smaller than those which will be in play on Tuesday 11 December that I have found the balancing process to be one that is not without difficulty.
However, those considerations have persuaded me that the risk to which Mr Bourke pointed of a breach of a continuation of the last 25 days of the Interim Supervision Order on a relatively technical basis leading to a further period of imprisonment, ought not be exaggerated.
I return to the jurisdictional issue to which I earlier referred. I am persuaded to grant orders in accordance with those sought by the State in its notice of motion, and I am persuaded that I have jurisdiction to do so, ultimately because I am satisfied that it is reasonably arguable that each of the elements that is required in order for an Interim Supervision Order to be made under the Act is made out. That said, I am not entirely sure that it is necessary for the purposes of this application for me to be so satisfied, but it is unnecessary for me to express a view on that issue. It may be that it would be preferable for the order to be expressed as a further, free-standing Interim Supervision Order, rather than a stay or suspension, but once again it is unnecessary to resolve that issue, which was not the subject of submissions.
I propose to make the following orders:
1. An order staying or suspending the orders made by Fagan J on 31 October 2018, with the intention that the interim supervision order made by Campbell J on 2 August 2018 and last extended by Bellew J on 25 September 2018 revives for the duration of this order, or until further order of the Court.
2. Grant liberty to both parties to apply on 1 business day's notice to my Associate for any application to amend or delete or alter the conditions of the orders whose operation has been restored by order 1.
Note that attached to this order is a sealed copy of the schedule of conditions of supervision which were originally made on 2 August 2018 and thereafter continued on 28 August and 25 September 2018.
Naaman - Schedule of Conditions (213 KB, pdf)
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Decision last updated: 30 November 2018