Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Taleb [2022] NSWSC 1392 Hearing dates: 13 October 2022 Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Common Law Before: Campbell J Decision: (1) An order pursuant to ss 24(5) and 38(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act): (a) appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and (b) directing the defendant to attend those examinations when appointed. (2) An order pursuant to ss 41 and s 42(1) of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing from the date of this order. (3) An order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order 2 above. (4) An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with the leave of 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. (5) List the matter for mention or directions before Bellew J at 9 am on 3 November 2022 or at such other time as the parties arrange in consultation with his Honour's associate. Catchwords: HIGH RISK OFFENDERS – Crimes (High Risk Offenders) – Interim Detention Order – application – where defendant breached recognisance order – application granted Legislation Cited: Terrorism (High Risk Offenders) Act 2017 (NSW), ss 20, 24, 38, 41, 42, 49, 50 Cases Cited: State of New South Wales v Naaman (No 2) [2018] NSWCA 328; (2018) 276 A Crim R 30 R v Taleb [2022] NSWSC 888 Texts Cited: Nil Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Moudasser Taleb (Defendant) Representation: Counsel: T. McDonald SC with R. McEwen (Plaintiff) P. Coady with D. Bhutani (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/164731 extempore Judgment (revised) 1. By summons filed on 4 October 2022 the State of New South Wales, which I will refer to as "the State", seeks as final relief under Terrorism (High Risk Offenders) Act 2017 (NSW) ("the Act") against the defendant, whom I will refer to by his name of Mr Taleb, a continuing detention order ("CDO") for a period of 12 months followed by an extended supervision order ("ESO") of two years' duration commencing upon the expiration of the continuing detention order. 2. Mr Taleb is currently in custody serving a sentence of imprisonment, for a firearms offence, which is the index offence, relevantly imposed by his Honour Judge Hanley SC in the District Court of New South Wales on 16 September 2022, of a fixed term of 18 months. His Honour imposed that sentence after allowing a severity appeal from the Local Court. 3. In the circumstance of Mr Taleb having been in custody since his arrest for those firearms offences on 16 April 2021, the sentence imposed by Judge Hanley expires on 15 October 2022. Accordingly, this application has been brought as a matter of urgency and must be dealt with before the expiration of Mr Taleb's sentence on Saturday. 4. The summons also seeks interim relief by way of an interim detention order ("IDO") for a period of 28 days commencing when it is made but suspended until the expiration of Mr Taleb's sentence. In the alternative, if the court is not satisfied about the appropriateness of an IDO, an interim supervision order ("ISO") is sought, similarly for a period of 28 days, which is the maximum period under the Act for which interim orders can be imposed (although they may be renewed up to a maximum period of three months). 5. The Court's power to make the IDO is conferred by the provisions of s 41 of the Act. Section 41 is in the following terms: The Supreme Court may make an order for the interim detention of an eligible offender (called an interim detention order) if, in proceedings on an application for a continuing detention order, it appears to the court that. (a) that the offender's current custody (if any) 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 or continuing detention order. It is important to bear in mind on a plain reading of the section that even if the matters alleged in the supporting documentation proffered by the State do not support a continuing detention order but would support an extended supervision order, I am empowered to impose an interim detention order. That is not an insignificant consideration. 1. Given the urgency with which the decision must be made and having regard to the hour of the day, I propose to be as direct in these reasons as the justice of the case permits. I have had the benefit of the detailed written submissions of Ms McDonald of learned senior counsel, who appears with Ms McEwen for the plaintiff, and of Mr Coady of learned counsel who appears with Mr Bhutani for the defendant. I have also had the benefit of their oral argument. Each of them has taken me through the most salient aspects of the nearly 1000 pages of material in the State's supporting documentation to assist me to focus on the true issues in the case. 2. I hope I do no disservice to their careful, very helpful and persuasive arguments if I do not deal with every matter to which they have directed me in the materials or expressly refer to every submission which they have made. I trust that the reasons I will now give will explain for all interested parties the orders I ultimately decide to make. 3. It is important at the outset to remind myself that under the Act, and in particular by s 50 of the Act, these proceedings, although dealing with the liberty of a citizen, are civil proceedings and to that extent, except as expressly otherwise provided by the Act, matters of practice and procedure and the laws of evidence which inform the exercise of the Court's powers are those which apply generally to civil proceedings. Whether proceedings are civil or criminal, in our system of justice we enjoy the common law adversarial system of justice in this State. By that system of justice, the parties determine what the issues are for the the Court's decision. It is unnecessary for me as the decision-maker to second guess them as to the issues they have decided between them that need to be determined in the current application. 4. Notwithstanding substantial agreement about important matters between counsel I need to just refer briefly to some aspects of the relevant law in order to put this preliminary decision in context. I am conducting a preliminary hearing following the commencement of proceedings, as the legislation requires me to do: s 38(4). The nature of the decision I have to make is described, as I have said, in s 41 of the Act and that section itself in my judgment sets out the relevant test I have to apply. 5. I should observe that there is no question that Mr Taleb's current custody will expire before these proceedings are finally determined. The real question that I have to decide is whether the facts alleged in the supporting documentation would, if proved at the final hearing, justify the making of an order, either in the nature of an ESO or a CDO. 6. So far as I understand that provision and the cases which have reflected upon its legal meaning, it is not for me to make any final decision of any relevant nature today. It is not for me to determine whether I am actually persuaded that any particular issue has been affirmatively today. My task is to examine the documents with the assistance of counsel and decide whether the facts relied upon by the State are capable of supporting a final order in due course. It is not for me, as I understand it, to apply any particular standard of proof to that exercise. In this regard I bear in mind the statement of the unanimous Court of Appeal in the decision of the State of New South Wales v Naaman (No 2) [2018] NSWCA 328; (2018) 276 A Crim R 30 ("Naaman (No 2)") at [17]: "Broadly speaking the test for making interim orders is that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (s 27). That determination will ordinarily be made in advance of the reports from the psychologists and psychiatrists, and in any event is a lower standard than applies to the making of an extended supervision order." The reference to psychologists and psychiatrists relates to other interim relief sought requiring me to appoint experts to provide evidence to the court at the final hearing (s 38 (5)). Although that statement of principle is made in the context of an application for an ESO, it equally applies as in this case where the final relief sought is a CDO. 1. While I am avoiding any glosses on the words of the statute, I understand my task to be 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 in deciding whether the test articulated in s 41 has been made good for this preliminary hearing. 2. I should acknowledge that Mr Coady and Mr Bhutani in their written submissions urged upon me a different approach. Their argument, particularly having regard to the language of s 20(d) of the Act concerning the unacceptable risk test, was that the correct approach was for me to assume that the matters relied upon by the State were proved and then to ask myself whether I was satisfied to a high degree of probability that Mr Taleb posed an unacceptable risk. With respect, I disagree. I adhere to the approach I have already outlined, that is to say, that my task is to determine whether the facts alleged, if accepted at the final hearing, are capable of discharging that higher standard of proof. 3. In any event there is no issue about the conditions specified in s 20 of the Act. That is to say that it is accepted for the purposes of the preliminary hearing only, that the facts alleged in the State's supporting documentation are capable of justifying at a final hearing a finding that Mr Taleb is in custody serving a sentence of imprisonment for a New South Wales indictable offence; that the application by the State has been made in accordance with the requirements of the Act; and that the allegations in the documentation are capable of justifying a decision at the final hearing that the Court is satisfied that Mr Taleb is a convicted New South Wales terrorist offender. 4. Moreover, Mr Coady accepts that the matters alleged in the documentation are capable of satisfying the court to a high degree of probability that Mr Taleb poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO. But he does not accept that the evidence would justify a decision at the final hearing that Mr Taleb poses such an unacceptable risk if not kept under a CDO. I interpolate, as I have said, for the purposes of s 41 it is sufficient that the evidence indicates an unacceptable risk if Mr Taleb is not kept under supervision. 5. As I have already said the index offending, as it is put, relates to a firearms offence, but the most significant matter of context in relation to the case relates to the circumstance that Mr Taleb was convicted by a jury of a Commonwealth foreign incursion offence. Indeed, the firearms offences, which were committed on 16 April 2021, were committed in the context of him serving a form of punishment in the community by way of recognisance order and his possession of those firearms was in direct contravention of the conditions of that order. 6. It is that Commonwealth conviction, as I understand it, that leads Mr Coady and Mr Bhutani to accept that the evidence is capable of justifying a finding that Mr Taleb is a New South Wales terrorist offender. But I have also been taken to other evidence by Ms McDonald which satisfies me, for the purposes of this preliminary hearing, that there will be other evidence led at the final hearing which will justify such a finding on other grounds. 7. It is not in dispute that Mr Taleb has in the past, and currently also, harbours extremist views. And indeed, he has expressed, even since his conviction for the foreign intrusion offence, views which suggest a state of mind which adheres to and accepts the commission of acts of violent extremism as according with the tenets of a radicalised version of his Muslim religion. I hasten to interpolate these extremist views are exceedingly rare, in the Court's experience, in the Muslim community. 8. There are other factors to which it is necessary to refer. Part of the context of the foreign intrusion trial was the undoubted consideration that it is now known Mr Taleb suffers from a treatment resistant form of schizophrenia and that this mental health condition is a factor which may be found to enhances his risk. It may enhance his risk because of the religious connotations of some of the delusional symptoms of that disease. It is not uncommon for persons who suffer from it to have grandiose religious ideas. 9. Moreover, he is subject to delusional thoughts and audio hallucinations. Those matters subject the sufferer from time to time to command hallucinations, which often lead to the sufferer committing dangerous and criminal acts. As I have said, the better part of the evidence before me is that the form of the illness Mr Taleb suffers is unfortunately treatment resistant. And therefore, although he has while in custody been compliant, mainly through a forensic treatment order, with his medication, he is also sometimes resistant to taking the medication. In my experience as a judge, this is not uncommon amongst the sufferers of this disease because the medication itself often has side effects which the sufferers find unpleasant to the point of debilitation. 10. Another important aspect of the evidence to which I have been taken in this case is the circumstance that Mr Taleb has not been compliant with the recognisance order that Hamill J imposed upon him. He has been called up on that order and his Honour has now imposed a Community Corrections Order with somewhat more stringent conditions than those to which Mr Taleb was formerly subject. The call-up was dealt with by his Honour on 7 June 2022 (see R v Taleb [2022] NSWSC 888) and it is not in dispute before me - it could not be, I interpolate - that during the time Mr Taleb was at liberty under the recognisance, he committed 13 breaches of the recognisance order between 12 November 2020 and 16 April 2021, when he was re-arrested. 11. Now, in fairness, in relation to those matters, breaches numbered 9 to 13 (see [11] of his Honour's judgment) all relate to aspects of the firearm offending, which is, I shall say again, the index offending for my purposes. But other matters are equally important to my mind in terms of the significance of his non-compliance with the order, and what that means in relation to the risk he poses in the community. 12. Breach 1 related to a failure to follow directions of Community Corrections. Breach 2 was a failure to accept his psychiatric treatment, by failing to take or receive an antipsychotic depot injection as directed by Bankstown Mental Health Service. There was a further breach of the same kind on 4 December 2021, and between 24 December 2020 and 12 April 2021 he failed to comply with a condition that he attend psychological counselling directed at deradicalisation, by failing to book an appointment with an Islamic psychologist, who had been identified and whom he had been directed to consult under the order. There was also consumption of a prohibited drug, being cannabis, which the evidence before me demonstrates is counter-indicated, to say the least, in the case of a schizophrenia sufferer; and, further, failure to attend upon his treating psychiatrist, Dr Nielssen, at different times. 13. The firearms offences are of some significance, because given it is not in issue that the evidence is capable of justifying a finding to a high degree of probability that Mr Taleb does pose an unacceptable risk, those offences involved the possession of a sawn-off and otherwise modified double-barrelled shotgun, which, when it was found by police, was loaded. Its identification number was also defaced, a clear sign that the weapon had been used by, or had been sourced from, persons involved in significant criminality. 14. Those circumstances are relevant in different ways. First, a person with treatment resistant and poorly controlled schizophrenia, armed with a firearm and an adherence to radical, violent, extremist Islam, can present a very significant public danger. But secondly, and relatedly, it also demonstrates that Mr Taleb was able to source such a dangerous weapon while under supervision. At least the facts of the index offending would justify those findings at the final hearing. 15. Without going through all the other matters to which I have been referred, and for which assistance I am grateful, it is obvious that those matters of themselves demonstrate, or are capable of demonstrating to a high degree of probability, that Mr Taleb poses an unacceptable risk if not kept under an order either of continuing detention or extended supervision under the Act. It is also, I suppose, self-evident that, given Hamill J imposed a form of punishment that required Mr Taleb to be of good behaviour and to subject himself to supervision in the community, the question must arise about whether Mr Taleb can be adequately supervised in the community under an ESO at this time. 16. I have referred to the breach of the condition of the recognisance that Mr Taleb obtain treatment for deradicalisation. It is common ground before me that that has not occurred. It is common ground before me that he has not, while he has been in custody, undertaken counter violent extremist programs. That may be because, as Mr Coady submits, they have not really been offered to him. But in any event, he has not had the benefit of such treatment. 17. Those are the suite of circumstances that really underpin the State's argument that Mr Taleb be kept under an IDO. 18. I need to bear in mind that I am not a sentencing judge. The function of a sentencing judge is centrally to impose a punishment which is proportionate to the offending, and that has occurred in the case of each of Hamill J and Hanley SC DCJ. My function under the Act is primarily to be concerned about community safety and the protection of the public. Another but lesser object is to encourage offenders to undertake rehabilitation. The object of the Act requires the court to make an order which will ensure the safety and protection of the community. This does not mean guarantee public safety, an impossible task, but to be guided by the need to achieve that end in fashioning the orders that are made. 19. The protective function of the Court's jurisdiction will frequently justify restrictions on liberty, which would not be justified by the law of sentencing. Indeed, the whole statutory context in which legislation of this type has come forward is the difficulty of balancing common law principles underpinning the law of sentencing with the need for community protection from offenders who remain dangerous in the sense of posing an unacceptable risk upon the completion of their sentence, especially if they were to be released into the community without restriction. 20. The submission on behalf of the State is that, given the matters to which I have been referred, given the ongoing treatment resistant mental illness, given the objective evidence of adherence to violent extremism, despite Mr Taleb's denials in that regard, I should at least at this interim stage impose an IDO in preference to an ISO. 21. Let me say, if I have not made it clear, there is no question at this stage that the matters alleged in the State's supporting documentation if proved would justify the imposition of an ESO. And even if I am not satisfied that they justify an IDO, the State urges upon me, in the exercise of my discretion, to impose an IDO at this stage until the court appointed experts' reports have been obtained and a clearer picture of risk and available remedy emerges. 22. Let me also say that the statutory risk assessment report forming part of the State's documentation, prepared by an expert without the benefit of an interview with Mr Taleb due to the urgency of the matter, and for that reason not definitive, assesses his risk of committing a terrorism offence if not under supervision as in the medium-to-high category. As Mr Coady submits, the learned author of the report does not suggest that detention is the only option at this stage. Ms McDonald responds that is not the expert's job. 23. It is also the case that I have had the benefit of risk management reports prepared by Community Corrections and the New South Wales Police Force respectively. It is implicit in the detailed measures which the authors of those reports recommend, that a very restrictive set of conditions can be imposed for Mr Taleb's supervision in the community. 24. A subsidiary issue arose about the suitability of accommodation available to Mr Taleb if he is released under supervision when his sentence expires on 15 October. I was informed that temporary accommodation in the nature of boarding house accommodation was available to him. I questioned the suitability of that, and there was a great deal of discussion and submission about this issue. 25. Whereas I would be of the view, were it entirely my decision, that he should not be released unless secure, supported accommodation were available to him, at least in the first instance as a transitional phase, I acknowledge the expertise of the parties, including the department officers and the police officers involved, in terms of the determination of what is suitable accommodation for a person under supervision. There has also been some discussion about the possibility of a hybrid order of an IDO while more suitable accommodation is located, if it can be, followed by an ISO. 26. It is quite clear that the recognisance order, notwithstanding a degree of supervision, was not effective because Mr Taleb did not comply with it in certain significant ways. The State submit that that is an important factor for me to take into account when I am asking myself whether the allegations in the supporting documentation would justify a continuing detention order. It is an important factor. But it has to be balanced against the consideration that, at least in my experience, the type of supervision which would be imposed under an ISO and indeed an ESO is the strictest form of supervision to which defendants are lawfully subjected when at conditional liberty in the community; much stricter than parole, much stricter than an ICO, much stricter than a CCO, in the Court's experience. At the same time, the protection provided by supervision orders under the Act is not absolute. Despite the importance of the Court having regard to protection of the community as the paramount consideration, no system of supervision can be made foolproof. 27. There has been a legitimate concern raised with me about the fact that Mr Taleb is in the Supermax facility, and that Dr Nielssen has suggested that that is anti- therapeutic. There is also the consideration that has been advanced that in that facility Mr Taleb has the opportunity to mix with other like-minded people, to some extent, and that the camaraderie which can be engendered among them can aggravate the risk rather than manage it. 28. I have been taken to documents that demonstrate that consideration is being given at this stage to moving Mr Taleb from the Supermax into other appropriate custodial arrangements, and I bear that in mind. I also bear in mind that the Court of Appeal said in Naaman (No 2) (at [29](6)) that the making of an order under the Act is discretionary and one reason not to make it may be where making an order would increase rather than diminish the risk. Mr Coady submits that leaving Mr Taleb in the Supermax would have that effect and that is a very potent discretionary reason for me to make an ISO rather than an IDO, and I have given that submission very serious consideration. 29. I acknowledge that in exercising the discretion whether or not to make an order, and if an order is to be made the form of it, one is entitled to take into account the consideration that Mr Taleb has presumptively the right to be at liberty following the completion of his sentence and I bear that in mind. 30. Whereas I have not found this an easy decision to make, given the complexity of the issues and their importance to the public and to the parties involved, I have decided, despite my attraction for the alternative, that the appropriate order to make as things presently stand is an IDO. In saying that, I am not in any way, shape or form suggesting that that will be the appropriate order after the final hearing. Indeed, I hope I have indicated there is a great deal to be said for the alternative. In the end I am swayed by the consideration that the very significant breaches of the recognisance order committed by Mr Taleb speak volumes in relation to the risk he currently presents. To my mind, it is in the interests of the protection of the community that the statutory reports from the Court-appointed experts be obtained before a final decision is made in relation to Mr Taleb's disposition, if I may put it that way, under the Act. 31. Accordingly, I propose to make the first alternative order sought by the State. 32. I wish to add to this that Mr Taleb should understand that this is a provisional, an interim determination, and it does not give any indication of what the outcome of the case may be after a full hearing. 33. For the reasons I have given, I make the following orders: 1. An order pursuant to ss 24(5) and 38(5) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act): (a) appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric and psychological examinations (as the case may be) of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and (b) directing the defendant to attend those examinations when appointed. 1. An order pursuant to ss 41 and s 42(1) of the Act that the defendant be subject to an interim detention order for a period of 28 days commencing from the date of this order. 2. An order pursuant to s 49(1) of the Act that a warrant be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order referred to in order 2 above. 3. An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with the leave of 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. 4. List the matter for mention or directions before Bellew J at 9 am on 3 November 2022 or at such other time as the parties arrange in consultation with his Honour's associate. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 October 2022