State of New South Wales v Holt (No 3) [2023] NSWSC 683

Supreme Court New South Wales

Medium Neutral Citation: State of New South Wales v Holt (No 3) [2023] NSWSC 683 Hearing dates: 5 and 9 June 2023 Date of orders: 22 June 2023 Decision date: 22 June 2023 Jurisdiction: Common Law Before: Campbell J Decision: Direct that the parties bring in short minutes of order conforming with the prayers for relief in the State's notice of motion of 30 May 2023 in respect of the subject confidential exhibit (otherwise see [40] below). Catchwords: HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – terrorism intelligence application – closed court – whether the Attorney General's order sought a 'pre-existing document' of the kind prescribed by the regulation – consideration of the interaction between the Attorney General's compulsory powers of documentary production by order under the Act and the Evidence Act 1995 (NSW) – terrorism intelligence application granted Texts Cited: Macquarie Dictionary, online ed Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Michael James Holt (Defendant) Representation: Counsel: P McDonald SC with T Epstein (Plaintiff) P Coady with J Wilcox (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/193502 Publication restriction: Non-publication order under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW), made on 14 December 2023.

JUDGMENT 1. The State of New South Wales ('the State') seeks a Continuing Detention Order against the defendant, Mr Holt, under the provisions of the Terrorism (High Risk Offenders) Act 2017 (NSW) ('the Act'). The matter is listed for final hearing before me on 4 and 5 July 2023. Mr Holt's current term of imprisonment expires on 31 July 2023, after which an Interim Detention Order for a period of 28 days imposed by N Adams J as long ago as 21 August 2021 will revive from its current state of suspended operation. 2. By notice of motion filed on 30 May 2023, the State applies for an order under s 59A of the Act that certain information be dealt with as terrorism intelligence as defined in s 4 of the Act. As it happens there has been agreement between the parties that documents falling into an identified category may be so dealt with and Yehia J made orders in that regard when the matter was before her Honour on 31 May 2023. The current dispute refers to a single document referred to in the motion as Confidential Exhibit MRS-1 ('the confidential exhibit') to the confidential affidavit of Acting Assistant Commissioner Michael Raymond Sheehy sworn on 26 May 2023. 3. I have already made orders that the application be dealt with in closed court and that there be suppression orders of the proceedings inuring until the making of final orders, at which time the issue may be revisited as appropriate. Those orders will cover these reasons, or at least such part of the reasons as the parties agree, with my approval, should remain suppressed. As I understand the position, on 1 June 2023 Yehia J pronounced orders under ss 59A and 59C maintaining the confidentiality of the confidential exhibit while the application is under consideration. 4. In these circumstances, it is appropriate that I deal with the matter without circumlocution or coded references. I will allow one exception, xxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.