Supreme Court New South Wales Medium Neutral Citation: Attorney General (Cth) v Amin [2023] NSWSC 1210 Hearing dates: 09 October 2023 Date of orders: 09 October 2023 Decision date: 09 October 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: 1. Pursuant to rr 1.12 and 6.15(3) of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the Summons be abridged to 5:30pm on Monday, 9 October 2023. 2. The plaintiff's application for an interim supervision order pursuant to s 105A.9A(4) of the Criminal Code (Cth) be listed for hearing on Friday 13 October 2023. 3. Otherwise, rulings made in accordance with Short Minutes of Order. Catchwords: PROCEDURAL – Interlocutory orders sought for abridgment of time to make interim supervision order – where significant delay in application – where dictates of justice considered – orders granted Legislation Cited: Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Uniform Civil Practice Rules 2005 (NSW) Category: Procedural rulings Parties: Attorney General (Cth) (Plaintiff) Mr N Amin (Defendant) Representation: Counsel: Mr T Liu (Plaintiff) Mr R Wilson SC (Defendant) Solicitors: Australian Government Solicitor (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/319785 Publication restriction: None Revised Ex tempore JUDGMENT 1. The plaintiff, the Attorney General of the Commonwealth of Australia, comes before the Court today on an urgent basis seeking a number of orders against the defendant under the Criminal Code 1995 (Cth). I granted leave to the plaintiff to file in Court the summons seeking the relevant orders. 2. On the application today Mr Liu appears for the plaintiff and Mr Wilson of Senior Counsel appears for the defendant. The defendant was present by audio visual link from custody. 3. The only orders sought today are the interlocutory orders set out in paragraphs 10 to 14 of the summons, essentially being orders that the time for service of the summons be abridged until 5:30pm today, and that the summons be returnable before the Court on 13 October 2023 for the purposes of the plaintiff's application that the defendant be subject to an interim supervision order (ISO) pursuant to s 105A.9A(4) of the Criminal Code; that is order 3 in the summons. No doubt the plaintiff will also be seeking some of the other protective orders, and in due course, if this application is successful and if the application for an ISO is successful, then an extended supervision order (ESO). 4. The proposed ESO conditions are annexed to the summons. They are numerous and complex. They would require the defendant to live at a nominated address and be subject to supervision and direction by Community Corrections and undertake such rehabilitation and treatment as is required. Further, the defendant would be required to provide information as to his whereabouts, activities and associations. In particular, the defendant would be precluded from associating with certain individuals and precluded from engaging in certain activities and visiting certain places. Whether all of those orders should be made, either on an ISO or ESO basis, is obviously a matter to be determined in due course should this application succeed. 5. The application is brought pursuant to r 1.12 Uniform Civil Procedure Rules 2005 (NSW). As set out in r 1.12, "the Court may by order extend or abridge any time fixed by the rules or any judgment or order of the Court." The reason that such an order is necessary is because, as a result of the late filing of the summons, the ordinary time for service and appearance by the defendant would be insufficient. The defendant is due to be released from custody on Sunday 15 October 2023. His parole has previously been refused and, if released on 15 October 2023, he will be released without the usual supervision that might be present. 6. On 15 April 2021 the defendant pleaded guilty to committing acts in preparation for or planning terrorist acts contrary to s 101.61(1) of the Criminal Code, and attempting to export tier 1 or being reckless as to whether they were tier 1 goods contrary to s 233BAA(5) of the Customs Act 1901 (Cth) and s 11.1 of the Criminal Code. 7. On 11 October 2021 the defendant was sentenced to five years and four months imprisonment, backdated to 16 June 2018. As I have said the sentence expires on 15 October 2023. 8. The plaintiff thus seeks an order under r 1.12 for an abridgment of time for service of the summons so that the plaintiff can make an urgent application for an ISO on 13 October 2023. 9. The defendant opposes an order for an abridgment of time. Specifically, the defendant says that, because of the delay in the plaintiff seeking to file the summons and bring the application for an ISO and ESO, the defendant has been significantly prejudiced. By that the defendant means that he will be prejudiced in his attempt to defend the application which the plaintiff proposes to bring on Friday for an ISO. 10. Indeed, the plaintiff accepts that the defendant has been prejudiced as a result of the delay in bringing this application. As set out in an affidavit in support of the application, the plaintiff refers to spending considerable time in preparing for the application and undertaking significant investigation and preparation of evidence. Further, the plaintiff refers to serving at least much of this material late last week from, 5 - 7 October 2023, including service of exculpatory material, that is material which might assist the defendant on the application. This includes transcripts of 2,000 phone calls apparently made by the defendant in custody. 11. There is little doubt that the lateness of this application causes procedural prejudice to the defendant. 12. Further, Mr Wilson submits that the test for the making of an ISO is somewhat less stringent than the test for the making of an ESO. Mr Wilson submits that in those circumstances it may be easier for the plaintiff to obtain an ISO (which is what the plaintiff wishes to do) than if the plaintiff had simply moved for an ESO. As Mr Wilson submits, if the plaintiff had not delayed and got organised earlier, then the application for an ESO could have been made whilst the defendant remained in custody and there would be no need for any ISO. 13. That may be so and that may be an appropriate course in some circumstances but there is nothing in the legislation which mandates that the plaintiff only seek an ESO without seeking an ISO in advance of the ESO. Whilst I accept the defendant's submission that he has been prejudiced in a procedural sense by the delay, I am unable to accept the proposition that, but for the delay on the part of the plaintiff, the defendant may not have been subject to an application for an ISO. 14. Mr Wilson also submits that the threshold requirements for the making of an ISO or ESO would not be extinguished just because the defendant is released from custody. The plaintiff agrees with that submission, such that it is not the position that refusal to make the orders sought for an abridgment of time would forever preclude the plaintiff seeking orders against the defendant for supervision. 15. Any application such as this must be determined in accordance with the dictates of justice. As I have said, I am only determining whether there should be an abridgment of time at this juncture and not whether an ISO or ESO should be granted. Dictates of justice is a broad term. It must encompass compliance with the overriding purpose, that is the quick, just and cheap resolution of all issues. 16. In one sense the submissions on behalf of the defendant are well made. The explanation for the delay in bringing this application is somewhat vague and might be viewed as somewhat unsatisfactory. Mr Liu points to the affidavit of his solicitor but the explanation for the delay is general in nature and merely points to the fact that the plaintiff did not make any decision about pursuing an ESO until 28 September 2023. That hardly explains why it took until 28 September 2023 to get to that point. Again, as is apparent from the evidence relied upon by the plaintiff, the plaintiff has been well aware of this defendant and his release date for some time. Those representing the plaintiff have been preparing on a preliminary basis for this application for some time. This is a case in which the explanation for the delay is somewhat lacking. 17. Having said that, the plaintiff points to the report of Dr Dusen and, in particular, her opinion that an ESO would encourage the defendant to access community-based support, whilst providing a layer of community protection through monitoring and surveillances as he stabilises in the community and focuses on reintegration. The plaintiff also relies on the observation of an officer of the Australian Federal Police, that based on his experience the proposed ESO conditions would reduce the risk of the defendant from committing a serious offence when he is released into the community at the conclusion of his sentence. 18. Those matters are relevant, but the plaintiff is not precluded from pursuing an application for an ESO merely by the release of the defendant on 15 October 2023. Indeed, I must proceed on the basis that, irrespective of any order for short service, the plaintiff will be pursuing the other orders sought in the summons, albeit not necessarily on Friday. 19. It follows that one of the key factors on which I should determine this application is that if the order for short service is not made the defendant will be released into the community for a certain period without supervision. Further, at least at this stage the defendant has not had an opportunity to obtain evidence to resist an ESO or even had the opportunity to review all the evidence served by the plaintiff. That gives rise to the potential problem that, if an order is not made at this time for an abridgment of time and the defendant is released into the community, he may be in the community not under supervision for a lengthy period. 20. I say this because the defendant must be afforded an opportunity to obtain evidence to resist any application for an ESO. However, the plaintiff is seeking to have a hearing for an ISO on Friday, not a hearing for an ESO. Although the period of the ISO is at this stage said to be only 28 days, there is a mechanism whereby the time between the hearing of the ISO and the hearing of an ESO may be extended should the defendant so require. 21. Further, in considering the dictates of justice, I must have regard to the purpose of the provisions of the Criminal Code which apply to post-sentence orders such as ISOs and ESOs. The very purpose of the legislation is to ensure the protection of the community. 22. Having regard to: 1. the length of time that the defendant may be in the community without supervision, if an order abridging time is not made; 2. the fact that the plaintiff will be seeking an ISO rather than an ESO on 13 October; and 3. the protective purpose of the legislation, I am satisfied that the dictates of justice require that the order for an abridgment of time be made. In the circumstances, I make the following orders: 1. Pursuant to rr 1.12 and 6.15(3) of the Uniform Civil Procedure Rules 2005 (NSW), the time for service of the Summons be abridged to 5:30pm on Monday, 9 October 2023. 2. The plaintiff's application for an interim supervision order (ISO) pursuant to s 105A.9A(4) of the Criminal Code 1995 (NSW) be listed for hearing on Friday 13 October 2023. 3. Otherwise, rulings made in accordance with Short Minutes of Order. ********** 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: 11 October 2023