I have been conducting a preliminary hearing in relation to a summons brought by the State of New South Wales against the defendant, Mr Mohamed Naaman, under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act").
The defendant is serving the last day of the balance of a term of imprisonment. His current incarceration relates to an indictable offence which he committed whilst in custody for a previous offence, and involved an assault on a Corrections Officer. He apparently attempted to slash at the Officer with some broken glass.
He was sentenced to a term of imprisonment of 12 months with a non‑parole period of 9 months. I have not looked closely at the chronology of events, but I infer that there was a degree of accumulation in relation to another matter.
He was finally released to his parole on about 16 November 2016. However, a little over a week before the parole expired, he, in breach of his parole, left Australia and remained overseas before returning to Queensland in May 2018.
Although he was interviewed by border force officers on re-entering Australia, in Brisbane, he was not arrested notwithstanding the outstanding warrant issued here in New South Wales.
He returned to Sydney in June 2018 when the warrant was executed, and he was taken back into custody, after having been interviewed by the Joint Counter-Terrorism Team. In that context, the application was made, in circumstances of significant urgency, yesterday as his term of imprisonment expires today.
Bellew J, the list judge for these matters, having conducted a directions hearing yesterday afternoon, listed the matter before me for hearing today, in order that the preliminary hearing and the application for an interim supervision order could be heard and dealt with prior to the expiration of the defendant's term of imprisonment.
I have had the benefit of detailed documentation and careful argument on behalf of the parties; for the plaintiff, by Mr Agius SC and Ms Melis; and for the defendant, by Mr Edwards of counsel. Counsel have also provided detailed and helpful written submissions.
I would like to record in this judgment the Court's gratitude, in particular to the representatives of the defendant, Mr Edwards and his instructing solicitor, for dealing with this matter in what must have been difficult circumstances, given the bulk of the material and the shortness of time. I must say, Mr Edwards has, under that significant time-pressure, produced a set of comprehensive written submissions overnight, which are very helpful. He and his instructing attorney, as I have said, are to be commended. I acknowledge the difficulty in responding to an application like this at such short notice, and having the benefit of detailed argument in opposition to the State's application for relief has been of great assistance to the Court.
I accept that, as I have said, there are some disadvantages because of the shortness of time the defendant and his representatives have had to deal with the matter. However, I remind myself that this is an application for an interim order, and not a matter for final relief.
Given the urgency with which the matter has come before the Court, I think it appropriate to make my decision and give my reasons for it now. If I do not do full justice to all of the material and all of the arguments that have been put, I content myself with the knowledge that it is better to deal with the matter now than to reserve my reasons. I also, however, note that the expression of reasons often helps one to arrive at the right result.
Mr Edwards has raised a number of issues, and it is perhaps helpful to deal with the matter by reference to the issues that have been contested. I should say, leaving aside what might be referred to as substantive matters, he has taken an objection to the competence, if I may put it that way, of the proceedings, essentially based upon s 23(3) of the Act.
Section 23 sets out the conditions which must be satisfied to entitle the State to bring the application for substantive relief. They include that the requirement that defendant is an eligible offender who is in custody or under supervision. I interpolate that Mr Edwards made some submissions about whether I could be satisfied that the defendant was an eligible offender, a matter I will return to after I have reviewed the evidence. However, making that assumption for present purposes, it is clear that the application has been brought while the defendant is serving a sentence of imprisonment in New South Wales for an indictable offence. It is also clear that the application has been brought during the last 12 months of the defendant's current custody.
There is also material before me which may be taken to address each of the matters referred to in s 25(3), but I understood Mr Edwards' argument to be that the report of the registered psychologist that has been provided as part of the supporting documentation does not assess the likelihood of the defendant committing a serious terrorism offence, as is required. For that reason, learned counsel submits that the proceedings are, as I have said, incompetent.
The report referred to is a document entitled "Confidential Risk Assessment Report" dated 30 July 2018 by a senior psychologist employed by Corrective Services. I should say that the author of the report, given the urgency with which the application has been brought, had limited time to make her assessment. She did not have an opportunity to interview the defendant and had to carry out a desktop assessment, by reviewing the documentation that had been provided for her consideration, which was very extensive. This is the same documentation that has now been put before me.
Mr Edwards' particular argument relates to the statement that the psychologist made at paras 89 and 90. It is clear from para 89 that the expert focused her mind on considerations specifically relevant to the risk of engaging in serious terrorism activity, rather than engaging in some other form of serious crime, and at para 90 she stated:
"As outlined above, due to the limitation of information available to the author, an adequate assessment of commitment to and support of ideologically motivated violence is unknown. Therefore, it is not possible to provide meaningful comment on such a scenario."
Mr Edwards argued that I should understand that as a statement that the author was unable to assess the likelihood of the defendant committing a serious terrorism offence.
I think, however, that, with great respect, the difficulty being addressed was the difficulty of generating specific scenarios that might ensue, having regard to the material before her. There is no doubt, with respect, that at para85 the author did assess a risk which is, in my judgment, a material risk for the purpose of s 23(3)(b). She in that paragraph stated that on the basis of the information available, notwithstanding its limitations, the defendant presented as a low risk of engaging in extremist violence. That matter, no doubt, is relied upon in relation to another matter Mr Edwards raised, to which I will return.
With respect, the technical point fails: there is an assessment, and the proceedings are competent.
It is necessary to go to some of the matters relied upon by the State to deal with the other issues for my determination. I must say that I am conscious that I am dealing with a preliminary hearing, not a final hearing. For that reason, it is appropriate for my reasons to be as reasonably short as I can make them.
The question of whether Mr Naaman is an eligible offender really turns upon the operation of s 10 of the Act. I will say, however, as I conceive my task at this time, it is sufficient if I am satisfied that the material put before me may be capable of satisfying the court at the time of the final full hearing, when a final decision is made, that he is an eligible offender. As I have said, there is no issue that he has committed, and is serving a sentence for, an indictable offence in New South Wales.
The provision relied upon by the State is s 10(1)(c). So far as is material for the present argument, it is sufficient to say that there must be evidence capable of showing that the offender has made statements or engaged in other conduct involving advocating support for engaging in any terrorist acts. And in considering that question at the relatively low threshold appropriate to this preliminary hearing, I bear in mind subsection (2), which is to the effect that it is not necessary that the defendant has been convicted of any offence in relation to the relevant conduct relied upon, whether in Australia or elsewhere.
The material, as I have said, includes the report of the psychologist and it is convenient to refer to some of the material by reference to that report, as the author summarises the matters relied upon by the State in a succinct manner. I am satisfied that the material, if proved at the final hearing, would justify a finding that the statements, in particular, made by the defendant indicate advocating support for engaging in terrorist acts.
I think it important to set out my impressions from some of the evidence, bearing in mind the limitations upon the powers of the Court at this time. And, for that purpose, I will refer specifically to s 27 of the Act, which I take to be the provision which empowers the Court to grant interim relief. It is in the following terms:
"The Supreme Court may make an order for the interim supervision of an eligible offender (called an interim supervision order) if, in proceedings for an extended supervision order, it appears to the court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
The debate before me has centred on whether para (b) of s 27 has been satisfied.
Mr Naaman is aged 43 years. I understand that he may recently have married during his absent from Australia, in Lebanon and his wife and a child of the marriage live there. It must be said that he has a very long criminal record for a large variety of offending, including crimes of violence. It seems to be the case that his offending started as a juvenile and has continued with frequency since then and, indeed, he has spent most of his adult life in custody. It is also the case, and not irrelevant to that pattern of offending, that he has a long history of substance abuse, including an addiction to heroin, the use of cannabis and the use of amphetamine type stimulants. It also seems to be beyond doubt that he suffers from a psychotic illness, probably, it may be said, schizophrenia and that interplay of a substance abuse disorder with a psychiatric illness is frequently associated with ongoing offending.
There is also a suggestion in the material that, quite apart from the psychotic illness, the defendant has as a comorbidity of personality difficulties. The psychologist did not put it as high as a personality disorder but she expressed the opinion that he suffered from cluster B personality traits, involving anti-social borderline and narcissistic type behaviour.
On her review of the custodial records, the psychologist concluded that the defendant's longest period of liberty since 1994 has been approximately six months, leaving aside two periods when the defendant breached his parole and was living under the shadow of active arrest warrants. These were a period of 15 months in 2010 and 2012 and that period which I have already referred to, from 2016 to 2018. It is clear, at least in respect of the second period, that he was living overseas as his passport was stamped in Lebanon and Germany.
As Mr Edwards submitted, there is no material from which I could infer for present purposes that the defendant may have gone to Syria, or any other place where the notorious terrorist organisation ISIS may be operating.
What the psychologist did say, however, is that he has a significant history of violent and interpersonally aggressive behaviour carrying across multiple settings; in custody and domestic relationships; towards the police; and in conjunction with other offending behaviour.
It is also quite apparent from considering this material that Mr Naaman's psychotic illness is characterised by him being subject to command hallucinations and that his paranoid beliefs run to persecutory ideas, mainly directed towards law enforcement. It is not irrelevant to record also that he has a history of suicidal ideation as part of his illness.
Taking these background factors together, there is also evidence which, if it comes up to proof at a final hearing, and is accepted by the judge, indicates that the defendant has expressed radical religious ideas, coupled with the perception of persecution by Australia and the Australian Government, which he attributes to intolerance of his religion and appearance.
Paragraph redacted.
Another factor of some concern is an incident which occurred in a correctional centre, where, admittedly in circumstances of some frustration as Mr Edwards points out, the defendant proclaimed that he would bomb the gaol when he was released. He said it with sufficient volume for a nearby Corrections Officer to hear and intervene. The Officer sought to rebuke him for that statement, and the defendant accused the Officer of rebuking him only because of his religion. Later, as Mr Edwards points out, on the same occasion, he told the Officer he was only joking and would never do such a thing. As anyone who goes to any airport, for travel domestically or otherwise, knows, there are some matters in the modern world it is dangerous to joke about.
One has to also bear in mind, as I have said, the attitude of disregard for the law that his criminal record and his absconding while on parole powerfully attest to.
It seems to me that if that body of material is proved as fact at a final hearing, it would justify, to the high degree of probability necessary a finding that the defendant presents an unacceptable risk of committing a serious terrorism offence.
I need to explain that finding in just a little more detail.
In particular, Mr Edwards submitted that I could not be satisfied as to para (b) of s 27 unless on the material led by the State taken at its highest I was actually satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision; that is, it is necessary for me to make that finding now for present purposes. With great respect, I do not accept that submission. I am dealing with a threshold question which is whether an interim order should be made. Although the question I must answer is naturally informed by an understanding of the law which must be applied at the final hearing, the question is limited by the language of s 27(b). It is enough that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. It is not necessary for me to make an evaluation of the s 20(d) question, beyond asking myself whether the material relied upon by the Crown is, as it were, arguably capable of satisfying, inter alia, the s 20(d) test having regard to the s 25(3) mandatory considerations and the interests of community safety.
The requirement that the Court will ultimately have to give effect to the paramount consideration of the safety of the community, of course, must colour any assessment of the material, whether at this preliminary stage or at the final hearing, and I have borne that in mind. But the only evaluation that I need to make, as I have said, is whether that evidence would, if proved to the satisfaction of the Court, to the relevant high degree of probability, justify the making of a final order. No further or more sophisticated evaluation than that is necessary, and I will say, with respect, that I do not understand my colleague, Rothman J, to have said anything substantially different - he may have expressed himself differently - in State of New South Wales v Ceissman [2018] NSWSC 508 or State of New South Wales v Elomar (No 2) [2018] NSWSC 1034.
The reason why I say that the allegations in the supporting documentation would, if proved, justify the making of an extended supervision order may be expressed this way. I think it is necessary, as Mr Agius argued, to take all of the factors together as a whole. Sometimes, of course, the whole is greater than the sum of the parts. It seems to me that a person who has a very bad criminal record, who suffers from a psychiatric illness, the symptoms of which involve command hallucinations and persecutory ideation against law enforcement, and who has expressed a radical view of any religion, including statements about bombing a government institution, and serving overseas to XXXXXXXXX, may be capable of committing a serious terrorist offence. It is not irrelevant to consider what we know of terrorist activity, both in this country and, notoriously, overseas. From this a consideration that the defendant's illness involves ideas of suicidal ideation is, as I have said, not irrelevant.
In my judgment, the allegations in the documentation would justify, if accepted at trial, the making of a final order, as I have said more than once.
I make it quite clear that I am not suggesting that the outcome is, by any stretch of the imagination, inevitable. These are very serious matters and the making of an interim supervision order, much like other interim orders in civil proceedings, will have the effect of preserving the status quo, as it were, until both parties have a fair opportunity to have a contest in court when each may lead evidence relevant to the issues. It will be a matter for the judge at the final hearing to decide whether she or he is actually satisfied, to the high degree of probability necessary, of the statutory risk. I say nothing about that, and nothing I have said in these reasons for the presently limited purpose will inform that determination in due course.
It seems to me that an order should be made for the period of 28 days initially, commencing at the expiration of his sentence at the conclusion of today. It should be subject to conditions, of course, appropriate to manage the risk, and I will give counsel the opportunity to discuss the necessary conditions.
(See transcript of evidence for discussion of appropriate conditions before and after luncheon adjournment.)
Before the adjournment I was giving my reasons for my decision in this matter and I indicated at that time that I would interrupt my reasons in order to hear from counsel on what conditions should be imposed on the interim supervision order I said I would make under s 29 of the Act.
I have not yet pronounced orders and I just want to record a couple of other matters that were put to me by Mr Edwards on behalf of the defendant. They are relevant to the decision I have already indicated but they are also relevant to the question of conditions.
The third issue that Mr Edwards addressed to me, which I think I have neglected to advert to so far, relates to the probability that the defendant would commit a terrorist act. I have already spoken at length about my view of the proper legal approach at this stage of the proceedings but I should also refer to submissions that Mr Edwards made in relation to that matter. I think I may have touched upon at least one of them already.
What Mr Edwards said and I summarise it, is that notwithstanding the apparent threat, if that is what it was, when released from prison the defendant did not bomb or take any steps in preparation to bomb the correction centre or anywhere else; nor, I have already remarked, is there any evidence that he went to Syria during his absence from Australia. Mr Edwards also emphasised the low risk assessment.
Another important matter affecting the probability of the defendant committing a terrorist act, in Mr Edwards' submission, is the content of the report of the Joint Counter Terrorism Team ("JCTT") which is in evidence. I have already mentioned that the Australian Border Force did not think it necessary to apprehend the defendant when he re-entered the country. When the matter was reviewed by the JCTT around the time of his re-arrest, that body indicated that he had not been the subject of any JCTT investigation in Australia and that they have no holdings on law enforcement records available to them to suggest that the defendant had current links to or was a member of any terrorist network in Australia or offshore. They also indicated in their view that there was no contemporary intelligence to suggest any current motivation, or intention, to carry out any politically motivated act in Australia or offshore. Their view was the defendant is not currently a person of interest.
I acknowledge the force of those submissions. As I have already said in these reasons often, if not always, it will be the cumulative strength of disparate factors, like those I have referred to, that will be important in making a preliminary decision. Moreover, as I have said, nothing about this preliminary decision affects what might be the outcome after a final hearing when all the evidence led can be maturely evaluated.
I think it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff's case and to take them at their highest when deciding whether the test articulated in s 27(b) has been made good in all the circumstances of the case.
Counsel have now substantially agreed upon the suite of conditions that should be imposed with the order. One category is in dispute, that is the conditions identified as Part I to the document Mr Agius handed up entitled "Access to the Internet and other Electronic Communications". The conditions in the document I have are numbered 38 - 47. Mr Edwards submits that none of the evidence before me indicates that the defendant has ever used the internet or any personal electronic device to make any subversive enquiry or disseminate propaganda or other information which might be taken as promoting terrorist causes. Mr Edwards pointed that when the defendant re-entered the country, law enforcement examined the telephone he was then carrying and found nothing on it of any concern. On that basis, learned counsel submits that it has not been shown that restrictions on access to the internet and other electronic communications are justified as a condition of the order in this case. The conditions ought to be directed to the particular risk which the supervision order seeks to manage.
There is force in the submission, I accept, however, as Mr Agius has argued, that given I have identified that the evidence if accepted would justify an extended supervision order, it is implicit that I have found that, if accepted, the evidence would justify satisfaction to a high degree of probability about the statutory risk. It is notorious that the internet and electronic communications are a fertile source of criminal conduct, facilitating organised crime and doubtless terrorist endeavours. Moreover, because of the long periods that the defendant has spent in custody, he has no established track record providing guidance as to his pattern of internet use.
The proposed conditions require the defendant to provide his enforcement officer with information which would enable his internet use to be checked, rather than necessarily monitored. I am conscious of the fact that the evidence suggests that the defendant's wife and child are overseas and he may wish to make contact with them over the Internet. As Mr Agius submits, the type of conditions proposed for supervision of his internet use do not stop the defendant using the internet for any lawful purpose and nor is it the case that one would expect routine eavesdropping, as it were, on his communications, at least not without any further lawful warrant.
I am satisfied that as part of the total suite of conditions that Part I is appropriate to managing the risk. I am conscious of the fact that these conditions are capable of being applied flexibly in the discretion, as it were, of the enforcement officer or other supervising person, and that no doubt working arrangements can be hammered out with the benefit experience of the defendant's response to the supervision imposed.
(Orders in accordance with short minutes of order. Matter fixed for directions before List Judge.)
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Decision last updated: 29 August 2018