State of New South Wales v Fayad (Final) [2021] NSWSC 294

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Fayad (Final) [2021] NSWSC 294 Hearing dates: 24-26 February 2021 Date of orders: 27 February 2021 Decision date: 26 March 2021 Jurisdiction: Common Law Before: Wright J Decision: 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. Catchwords: HIGH RISK TERRORISM OFFENDER – Final hearing – Application by the State for extended supervision order – Convicted NSW terrorism activity offender – Whether Court was 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 under the Terrorism (High Risk Offenders) Act 2017 – Where defendant convicted of whipping fellow Muslim to administer Sharia law – Where defendant refused to renounce his offending and stated only that he lacked authority to carry out the punishment – Defendant's associations with persons who have engaged in terrorism offences and advocated support for violent extremism and terrorist organisations – Where defendant involved in conversion to Islam, as he understood it, of those with whom he came into contact – Where defendant was a guide and mentor with engaging personality capable of exerting significant influence over younger or vulnerable persons – Relevant risk of commission of serious terrorism offence established – ESO granted subject to conditions Legislation Cited: Crimes Act 1900 (NSW) Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Code (Cth) Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) Evidence Act 1995 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 CXZ v Children's Guardian [2020] NSWCA 338 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [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; [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)