Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Haidar [2020] NSWSC 38 Hearing dates: 4 February 2020 Date of orders: 07 February 2020 Decision date: 07 February 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: HIGH RISK OFFENDERS - high risk terrorist offender – preliminary hearing – whether defendant is a convicted NSW terrorism activity offender – where offender displays images and symbols of organisation – whether organisation supports terrorist acts or violent extremism – where organisation not proscribed by the Commonwealth – whether the matters alleged would if proved justify extended supervision order – whether offender poses an unacceptable risk of committing a serious terrorism offence Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) s 27 Criminal Code (Cth) ss 100, 102 Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW) s 56 Firearms Act 1996 (NSW) ss 7, 74 Mental Health Act 2007 (NSW Terrorism (High Risk Offenders) Act 2017 (NSW) ss 4, 6, 7,10, 20, 21, 24, 27, 50, 54, 61 Weapons Prohibition Act 1998 (NSW) ss 7, 34 Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 98 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Naaman (No 2) [2018] NSWCA 328 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 State of NSW v Ceissman [2018] NSWSC 508 Texts Cited: Nil Category: Procedural and other rulings Parties: State of New South Wales (Plaintiff) Ali Haidar (Defendant) Representation: Counsel: C Furness SC & C Palmer (Plaintiff) M Johnston SC & J Lucy (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/395383 Publication restriction: Nil Judgment 1. By a summons filed on 13 December 2019 the State of New South Wales seeks, in the first instance, interim orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act) and, thereafter, if the interim orders are granted, an extended supervision order for three years under that Act. Legislation 1. The requirements for the making of an extended supervision order are principally contained in ss 20 and 21 of the Act. Those sections provide: 20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if: (a) the offender is in custody or under supervision (or was in custody or under supervision at the time the original application for the order was filed): (i) while serving a sentence of imprisonment for a NSW indictable offence, or (ii) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order, and (b) an application for the order is made in accordance with this Part, and (c) the Supreme Court is satisfied that the offender is any of the following: (i) a convicted NSW terrorist offender, (ii) a convicted NSW underlying terrorism offender, (iii) a convicted NSW terrorism activity offender, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. 21 Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an eligible offender committing a serious terrorism offence is more likely than not in order to determine that there is an unacceptable risk of the offender committing such an offence. 1. Section 4 of the Act defines serious terrorism offence as an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 years or more imprisonment. 2. Section 7 of the Act defines eligible offender as follows: 7 Eligible offender In this Act, an eligible offender is a person who is: (a) 18 years of age or older, and (b) serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence. 1. Section 6 defines the words serving sentence of imprisonment as follows: 6 Serving sentence of imprisonment In this Act, a person is serving a sentence of imprisonment for an offence if: (a) the person is serving a sentence of imprisonment for the offence by way of full-time detention, or (b) the person is on parole in respect of the offence. 1. In the present matter the State asserts that, for the purpose of s 20(c), the defendant is a convicted NSW terrorism activity offender as defined in s 10 of the Act relevantly as follows: 10 Convicted NSW terrorism activity offender (1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender's offence) and any of the following apply in respect of the offender: … (c) the offender: (i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or (ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism. (1A) Without limiting subsection (1) (c): (a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following: (i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, (iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and (b) … (2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere). (3) … 1. Section 100.1(1) of the Criminal Code (Cth) being a schedule to the Criminal Code Act 1995 (Cth) defines terrorist act as follows: terrorist act means an action or threat of action where: (a) the action falls within subsection (2) and does not fall within subsection (3); and (b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and (c) the action is done or the threat is made with the intention of: (i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or (ii) intimidating the public or a section of the public. (2) Action falls within this subsection if it: (a) causes serious harm that is physical harm to a person; or (b) causes serious damage to property; or (c) causes a person's death; or (d) endangers a person's life, other than the life of the person taking the action; or (e) creates a serious risk to the health or safety of the public or a section of the public; or (f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to: (i) an information system; or (ii) a telecommunications system; or (iii) a financial system; or (iv) a system used for the delivery of essential government services; or (v) a system used for, or by, an essential public utility; or (vi) a system used for, or by, a transport system. (3) Action falls within this subsection if it: (a) is advocacy, protest, dissent or industrial action; and (b) is not intended: (i) to cause serious harm that is physical harm to a person; or (ii) to cause a person's death; or (iii) to endanger the life of a person, other than the person taking the action; or (iv) to create a serious risk to the health or safety of the public or a section of the public. (4) In this Division: (a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and (b) a reference to the public includes a reference to the public of a country other than Australia. 1. Section 102.1 of the Criminal Code defines terrorist organisation as follows: terrorist organisation means: (a) an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act; or (b) an organisation that is specified by the regulations for the purposes of this paragraph (see subsections (2), (3) and (4)). 1. Sections 24 and 27 of the THRO Act deal relevantly with the making of an interim order. Those sections relevantly provide: 24 Pre-trial procedures … (4) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the eligible offender to attend those examinations. (6) Without limiting subsection (5) (a), the Supreme Court may also make orders appointing any other relevant experts to furnish reports to the Supreme Court in respect of the eligible offender on specified matters. (7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application. … 27 Interim supervision order 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. Legal principles 1. The first application made under this Act was State of NSW v Ceissman [2018] NSWSC 508. In his judgment in that case Rothman J helpfully summarised the principles from the Act, and drew attention to the similarities with the learning that had developed in relation to the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). I gratefully adopt his Honour's summary set out at [8]-[42] of that judgment. I note particularly the following matters: [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. [27] The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the outcome of the manifestation of that risk. The more likely the manifestation of the risk, the more likely it is that the Court would find that less serious harm would amount to an unacceptable risk. Conversely, where the manifestation of a risk would create a most serious harm, then the Court may take the view that the risk is unacceptable, even though the likelihood of its manifestation is low, but not insignificant. [28] A risk that is insignificant is not an unacceptable risk, and therefore not a risk in my view, with which the Court should be concerned: see State of NSW v Pacey [2015] NSWSC 1983, per Harrison J who said: "A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [29] With respect to Harrison J, I adopt this eloquent encapsulation, except I would utilise the term "insignificant" instead of "very low". [30] The Court is required to look at risks that are not insignificant and which, on the material before the Court, if proved, would result in serious harm for which the Court ought prescribe precautions. The term "insignificant" is used not in its meaning as "not important", but, rather, as meaning "not fanciful" or "not ephemeral". [31] To utilise two deliberately extreme examples: if the risk were the detonation of a nuclear missile involving the death of many, only a very slight probability may be required to render the risk unacceptable. On the other hand, if the manifestation of the risk was a minor contusion, even a high probability of its manifestation may not render the risk unacceptable. [32] Once that equation has been evaluated, the Court is required to be satisfied to a high degree of probability that the offender poses an unacceptable risk. The high degree of probability does not relate to the existence of the risk or the likelihood of its manifestation, but to whether the offender poses such an unacceptable risk: Cornwell v Attorney General of NSW [2007] NSWCA 374 at [21], in regard to which one must now consider the terms of s 21 of the THRO Act (and 5D of the CHRO, although there are differences in wording that may be significant). The task is an evaluative one: State of NSW v Thurston [2018] NSWSC 421, per Garling J quoting Lynn v State of NSW (2016) 91 NSWLR 636; [2016] NSWCA 57. [33] The unacceptable risk, as has been made clear, is the unacceptable risk of committing a serious terrorism offence and, in that respect, the "harm, hazard or loss" to which earlier reference has been made is qualified to become "harm, hazard or loss" occasioned by the commission of a serious terrorism offence. 1. In addition, I note what the Court of Appeal said in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29] when speaking of s 20 of the THRO Act: Paragraph (d) is a complicated provision, and in light of the State's submissions in support of ground 1 of its appeal that the primary judge had conflated various aspects of the test it prescribes, it is best to address its elements immediately. First, and no differently from par (c), this precondition to the power to make an extended supervision order turns upon the Supreme Court being of the requisite state of satisfaction. Secondly, par (d) of s 20, unlike pars (a), (b) and (c), is forward-looking. It asks not whether the State has demonstrated that a person answers certain descriptions because of what has happened in the past; rather, it (alone of the prerequisites to the availability of the power to make an extended supervision order) requires an inquiry to be made of the inherently uncertain future as to whether something will occur. Thirdly, par (d) requires the Court to be satisfied to a "high degree of probability" of future events. Those qualifying words perform at least two functions. They confirm that the issue posed by the statute is not resolved by mere speculation. They also displace the ordinary position in civil litigation for findings of fact. (Section 50(1) provides that proceedings under the Act, including an appeal, are civil proceedings and are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings.) The ordinary civil standard of proof, reinforced by s 140 of the Evidence Act 1995 (NSW), is replaced by the need for the Court's state of satisfaction to be "to a high degree of probability". Fourthly, that forward-looking evaluation turns upon the premise that the eligible offender is "not kept under supervision under the order" which the State is seeking. On that premise, the Court is then required to determine the "risk of committing a serious terrorism offence". It will be relevant to the assessment of that risk to consider both the likelihood of the offence being committed, and the relative seriousness of the offending conduct. Fifthly, the Court is then to determine whether that risk is or is not "unacceptable". It is entirely possible that the Court might be very comfortably satisfied (ie to the requisite high degree of probability) that there is a slim probability of an unsupervised offender committing a terrorist act, and that that risk is unacceptable having regard to the consequences of the act, even if the probability of the risk eventuating is less than 50%. That result would readily be reached absent s 21, but that section makes the position clear beyond argument. That said, what is or is not "unacceptable" is not otherwise defined in the Act. Sixthly, if so satisfied, then the discretion under s 20 is engaged. For example, if the Court were satisfied to a high degree of probability that an offender posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision, but were also satisfied that there would be substantially the same risk, or indeed a greater risk, if the offender were kept under supervision, that might ground an exercise of discretion to decline to make an order. 1. Sections 24(5) and 27(b) both contain the same test, namely, that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. If that threshold is reached, the Court must appoint the experts referred to in s 24(5) and may make an interim supervision order under s 27. Under the CHRO Act, the test for this provision using identical wording is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 983 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. 1. In State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041, a case under the CHRO, RA Hulme J said: [17] A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J). [18] The test in s 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". [19] There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO. 1. I accept the State's summary of the principles concerning the approach to be adopted by the Court when hearing a preliminary application: (a) The plaintiff is not required to prove the allegations it makes: State of New South Wales v Thurston [2017] NSWSC 1760 at [19]; (b) The "matters alleged" refer to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them: Golding at [18]; (c) It is not for the Court to weigh up the documentation, resolve any conflicts, inconsistencies or uncertainties which appear in the documentation, to predict the ultimate result or to consider what evidence the defendant might call at the final hearing: Golding at [17]; State of New South Wales v Sturgeon [2019] NSWSC 559 at [7]; (d) Once the Court reaches the requisite state of satisfaction at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an order for an ISO. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court's discretion: Tillman at [32] and [98]. Evidence 1. The State relied on the following evidence: (1) Affidavit of Claudia Pendlebury affirmed 13 December 2019 with Exhibit CP-1 referred to in that affidavit; (2) Affidavit of Claudia Pendlebury affirmed 21 January 2020; (3) Affidavit of Claudia Pendlebury affirmed 24 January 2020; (4) The Risk Assessment Report of Katrina Czerkies dated 6 December 2019; (5) The Risk Intervention Report of Stela Ilijevska dated 11 December 2019; and (6) The expert report of Dr Roger Shanahan dated 29 November 2019. 1. The Defendant read an affidavit of the defendant's solicitor, Diane Elston affirmed 15 January 2020. The defendant's background 1. The following summary is derived principally from the report of Ms Czerkies. 2. The defendant was born in July 1989 and is now aged 30 years. He was born in Beirut in Lebanon and arrived with his family in Australia in 1991 when he was two years old. He is the second eldest of five children. He has a five-year-old daughter from a previous relationship that endured ten years. 3. There is a history of experiencing violence at home at the hands of his father, poor school experiences, significant illicit substance abuse and concerns with the law. 4. He has also been diagnosed with various mental health issues which impact his day to day living and his ability to obtain and sustain employment. He has been diagnosed with a number of conditions over the years but has most recently been diagnosed with schizoaffective disorder. In April 2019 he was scheduled under the Mental Health Act 2007 (NSW) for approximately one month. His ongoing chronic use of illicit substances negatively impacts his mental health, and interferes with his ability to successfully engage in intervention to address those factors. He is currently on a disability support pension. 5. He has used social media platforms to share images of himself showcasing weapons and firearms. He has used such platforms to share and express his support for the AMAL movement and Hezbollah (also spelt Hizbullah and Hizbillah) in Lebanon. One wing of Hezbollah is a proscribed terrorist organisation by the Australian and other governments. 6. The defendant has a lengthy history of violent offending, having been dealt with by the Children's Court for a number of serious offences including aggravated robbery, assaulting/resisting officers. As an adult the defendant has a history of convictions for violence, destroy/damage property, affray, possession of unauthorised firearms and weapons, police pursuit, driving, stalk/intimidate, drug possession and supply as well as domestic violence against members of his family including his father, brother, sister and partner. The index offences 1. On 23 January 2018, whilst subject to two s 9 bonds for custody of a knife and possess/use a prohibited weapon without permit, the defendant was charged with the following offences: (a) possess unauthorised prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW); (b) acquire prohibited firearm, subject to firearms prohibition order, contrary to s 74(1) of the Firearms Act; (c) possess or use prohibited weapon without permit, contrary to s 7(1) Weapons Prohibition Act 1998 (NSW); and (d) use prohibited weapon contrary to prohibition order, contrary to s 34(1) of the Weapons Prohibition Act. At the time of these offences the defendant was subject to a Firearms Prevention Order (FPO) and Weapons Prevention Order (WPO). 1. The defendant was convicted and sentenced for these offences on 30 July 2018 to a non-parole period of 14 months commencing 9 February 2018 and expiring 8 April 2019 with a balance of term of 10 months expiring 8 February 2020. The defendant was released to parole on 8 April 2019. Requirements to be proved 1. It is necessary to examine whether the material in the supporting documentation would if proved make out the requirements of s 20. (a) The offender is in custody or under supervision 1. The defendant is an eligible offender because he is serving (on parole) a sentence of imprisonment for a NSW indictable offence. The offences against the Firearms Act and the Weapons Prohibition Act are indictable offences. (b) The application is made under Part 2 of the THRO Act 1. This matter is satisfied. (c) The defendant is a convicted NSW terrorism activity offender 1. The State alleges that the defendant is a convicted NSW terrorism activity offender. The term is defined in s 10 (at [6] above). The State relies on paragraph (c)(i) of the definition. The State must show relevantly, therefore, that the defendant has previously made or is making any statement, or has previously carried out or is carrying out any activity, advocating support for any terrorist act or violent extremism. 2. When considering whether the defendant has advocated support for a terrorist act or violent extremism, sub-s (1A) sets out three non-exclusive ways that such advocacy could occur. Those ways are: (i) making a pledge of loyalty to, (ii) using or displaying images or symbols associated with, (iii) making a threat of violence of a kind that is promoted by, a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism. 1. The State relies on sub-paragraph (ii), and points particularly to the following matters which are summarised in the report of Ms Czerkies as follows: 59. In 2014, Mr Haider uploaded images of himself to social media, namely Facebook, wearing clothing with AMAL Political Party insignia attached to it (172987176; Indictable Brief, Senior Constable A. Selvage, 14/11/2019). He also uploaded an image of the AMAL Political party symbol. 60. During this same year, Mr Haider uploaded an additional image that depicts him holding weapons. In this same image, there is a photo on the dashboard of the vehicle he was sitting in that appears to be of the current Secretary General of Hezbollah. It is noted, however, that in text posted underneath this image, Mr Haider claims that the car is owned by a family member (Indictable Brief, Senior Constable A. Selvage, 14/11/2019, p. 922). 61. In 2016, Mr Haider is observed to have a tattoo that includes images of a tank, apache helicopter and a number of soldiers, holding rifles, in different firing positions situated underneath a Hezbollah flag (162695540; Indictable Brief, Senior Constable A. Selvage, 14/11/2019, p. 693). During an interaction with NSW Police during this same year, Mr Haider reported that he had spent time in Lebanon in 2013 and that whilst there witnessed the ISIS bombing of the Iranian Embassy. He was also observed to explain the methodology behind causing mass causalities during a bombing, "They use a small bomb to injure some people and then when the police and military come they drive in the big bomb and get as many more as they can", and "If they have on like a bomber vest and they think they get caught they will blow themselves up straight away so they don't get shot before they can let it off" (162695540; Indictable Brief, Senior Constable A. Selvage, 14/11/2019, p. 693). 62. Moreover in 2016, two large AMAL Political Party flags were located in his apartment (Indictable Brief, Senior Constable A. Selvage, 14/11/2019). 63. In 2017, Mr Haider posted three images of himself to social media, namely Facebook, wearing military style clothing and holding weapons (i.e., AK47). He is also observed to be wearing a hat with AMAL Political Party insignia attached to it (Indictable Brief, Senior Constable A. Selvage, 14/11/2019, p. 988, 989). 64. In 2018, Mr Haider was observed to have a tattoo of a Hezbollah symbol (E68831951, E128590901). 65. In 2019, Mr Haider uploaded an image of himself wearing military style clothing whilst holding what appears to be a rifle and wearing a hat with AMAL Political Party insigna attached to it. imposed upon this photo is a ripped piece of paper with the following writing, "We are with/ from Harakat AMAL (Amal Movement) (Expert Witness Statement, Dr R. D. Shanahan, 29/11/2019). 66. Additionally in 2019, Mr Haider is observed to have a tattoo of an image of the 'Sword of Ali' (Indictable Brief, Senior Constable A. Selvage, 14/11/2019) as well as a tattoo of the AMAL Political Party symbol on his left bicep (NSW Police Investigator's Note, Senior Constable A. Selvage, 27/11/2019). Further, during an interaction with NSW Police on 27/11/2019, Mr Haider was also observed to be wearing a black leather bracelet with a number of Hezbollah flags on it. It was also noticed on this same date that Mr Haider had an AMAL flag hanging from a hook in the ceiling of his residence (NSW Police Investigator's Note, Senior Constable A. Selvage, 27/11/2019). 1. The reference in paragraph 61 to the Hezbollah flag is incorrect. The flag is the AMAL flag, as both the exhibit and Dr Shanahan make clear. There was evidence that the defendant said (wrongly) that it was the Hezbollah flag. In addition there was no evidence of the matter referred to in paragraph 64. 2. The State also relies on the following matters. 3. In 2014 the defendant uploaded a picture to his Facebook page of himself wearing a uniform belonging to the AMAL movement (paragraph 59 of Ms Czerkies' report). The State points to an exchange in comments left on the uploaded Facebook photograph between the defendant and a person named Mohamed Darwhice. Some of the conversation was in Arabic, but the English and the English translation of the exchange is as follows: Darwhice: U'll get a call from the embassy/office soon for a check up. And ull be armed up in minutes. Defendant: I can get you in if you want? Defendant: Mohamed you know the most with what you have seen with your own eyes. Defendant: We are going to fuck Beirut when I come, you have the women that came last time when I fucked her good, I left some for Hayden El Mara, we are going to smash the ground hard, AK's behind our back in the streets and not a peep from anyone, get out of the way fuckers, Amal has arrived. This conversation was said to show that the defendant had connections in, or an association with, AMAL, and an intention to engage in violence. 1. On 16 July 2014 the defendant posted a picture on Facebook of himself with a gun (paragraph 60 of Ms Czerkies' report). The State points to an exchange on Facebook in relation to the uploaded image where a friend of the defendant asks "Can I borrow it please" to which the defendant responds: Haidar: Joe u gotta give me two days notice weneva u wanna go massacaring cunts with it coz I gotta go bak to Beirut to pick it up n cum back to us better be on the news loll I'll even get u the 45 that's on myy waste. 1. On 5 November 2016, the defendant was in police custody. He explained to the police the significance of a number of tattoos on his body. He also began telling police about a period of time that he said he spent in Lebanon in 2013 when the Iranian embassy was bombed by the Islamic State. He claimed to have witnessed the incident from the unit block where he was staying with his aunty (paragraph 61 of Ms Czerkies' report). He said: They use a small bomb to injure some people and then when the police and military come they drive in the big bomb and get as many more as they can. If they have on like a bomber vest and they think they get caught they will blow themselves up straight away so they don't get shot before they can let it off. 1. Dr Shanahan said that the description by the defendant correlated with the way the bombs were exploded at the embassy at that time. Dr Shananan said, however, that the images of the blast area together with Dr Shanahan's experience of having visited the embassy several times indicated the presence of apartments close to the embassy. A number of those were caught in the second blast and significantly damaged. Dr Shanahan said that if the defendant had witnessed the incidents it was reasonable to believe that he would have received some type of injury from glass shards or the blast itself. 2. The evidence establishes, and the State accepts, that the defendant was in Australia at the time of this incident. The description provided by the defendants appears to be no more than was in the public domain as reported in the media. 3. On 3 November 2016 police were informed that the defendant had purchased a crossbow and taken multiple pictures of himself with it. 4. On 5 November 2016 police conducted a FPO search of the defendant's residence. They found two large flags with insignias "consistent with that of the Amal Political Party" (paragraph 62 of Ms Czerkies' report). 5. On 15 September 2017 police became aware of the defendant's Facebook profile displaying a male (believed to be the defendant) holding an assault style firearm. The word "general" appears under the defendant's name. There were other images of him holding a firearm (paragraph 63 of Ms Czerkies' report). The display picture has a comment dated 14 September 2017 as follows: My mental state is at its peak. I'm ready to offload sum fire works on the ones who deserve it. Emoji of firearms no women no kids coz That's just unexepted sic. My finger is tempted to pull the trigger n blow A mutha fuka to pieces so I can separate the uncles from all there nefews n nieces. Fukkk yeah. On 17 September 2017 the defendant posted on Facebook, "Guns, Guns, Guns, Fuk the F.P.O.". 1. When the police searched the defendant's house on 27 November 2019 they found him wearing a bracelet with Hezbollah flags on it, and there was an AMAL flag located hanging in his room. 2. Police also found the following further images on the defendant's Facebook (paragraph 65 of Ms Czerkies's report): a. Photographs in September 2017 displaying a picture of the defendant wearing what appears to be military clothing and/or holding an automatic rifle and/or wearing a baseball cap with Arabic writing that translates to "hope party of Amal in Lebanon" b. In 2018 the defendant is observed wearing a shirt of the same nature as the baseball cap and with the "Amal" insignia on the left chest area. 1. A police review of the offender's Facebook in November 2019 identified the following items of interest: a. 21/2/2014 - Cover photo of the Amal Political Party symbol on a floor in an unknown location; b. 5/11/2014 - Image of the defendant holding a rifle with a pistol in his bumbag strap; c. 7/11/2014 - Image of the defendant seated in a motor vehicle with rifle across chest and holding pistol out the window pointing towards the camera. The defendant commented on this photo: " Ak47 over a knife hmmm I think sooo"; d. 8/11/2014 - Image of the defendant wearing a vest with the Amal Party on it; e. 8/11/2014 - Image of the defendant in the vest mentioned above showing the back. Comments suggest the writing is "The Hope Movement" (the Arabic name of the Amal Political Party); f. 12/ 08/ 2017 - Image on profile pictures of the defendant holding an assault rifle; g. 14/09/2017 - Image posted of the defendant sitting, holding an assault rifle with a pistol laying on his chest, wearing army camouflage and a cap with the Amal symbol on it; h. 17/09/2017 - Image posted of the defendant standing, holding an assault rifle, wearing army camouflage and a cap with the Amal symbol on it; i. 15/11/2017 - Image of the defendant pointing a pistol at another person who is pointing an assault rifle at the defendant (person out of the frame); j. 19/07/2019 - Video shared to the defendant's timeline indicating that he donated to Muslims Around Tire World International; k. 8/08/2019 - the defendant posted, "U never take a knife to a gun fight. Period"; l. 24/10/2019 - Image posted on 17/09/2017, but with superimposed symbols and writing - appear to relate to Amal Political Party. 1. An analysis of the defendant's tattoos reveals: a. Right forearm: (i) writing - "Judged By One" (ii) silhouettes of soldiers and helicopters under the Amal flag b. Left side of neck: (i) Image of the Sword of Ali (a Shia symbol) (ii) Image of an unknowm entity holding a pistol to a police officer's head c. Left forearm: (i) Tribal Tattoo (ii) Unknown writing similar to right forearm, ending in "By Many" (writing wraps around arm and we cannot see beginning of sentence) d. Left bicep: (i) Symbol in green and red - likely the Amal symbol 1. Dr Shanahan was asked about the significance of the defendant's tattoos and the images of the defendant on his Facebook pages. Dr Shanahan said there was nothing in any of the images that had any connection with Hezbollah. There were several images that were connected to AMAL including the AMAL symbol. 2. The State also directed attention to some photographs which had not been shown to Dr Shanahan. One of these showed the defendant wearing a wrist band containing a copy of the Hezbollah flag. 3. The report of Dr Shanahan provides the following information about AMAL and Hezbollah. Dr Shanahan says that AMAL is one of the two Lebanese Shi'a political parties. It was formed in the early 1970s as a political movement designed to challenge the traditional power of the Shi'a political structure in Lebanon that was based on fealty to a number of familial leaders. AMAL was a militia that grew out of the political movement. 4. Since Syria's withdrawal from Lebanon in 2005, AMAL has drawn closer politically to Hezbollah and has been a strong but junior partner in Hezbollah's parliamentary political bloc. Although it is a demonstrably Shi'a party, it is more secular than Hezbollah as it is dominated by lay members and does not institutionally subscribe to the pro-Iranian ideological view of governorship of the jurist. 5. AMAL still retains a militia component, but it is far less capable than Hezbollah's, although it is often deployed during periods of political tension in the country. Whilst AMAL has not been the target of a terrorist designation itself, its close cooperation with Hezbollah's armed element during periods of tension within Lebanon raises concerns that, while it may not share Hezbollah's ideological orientation, it does share its willingness to use its militia when its political interests are threatened. Dr Shanahan said that media reports in 2019 that the US Treasury were planning to designate AMAL a terrorist organization were played down by Washington. 6. Hezbollah is the dominant Shi'a political party in Lebanon that retains a highly capable, semi-conventional armed militia that enjoys significant political, ideological, financial and military support from Iran. It first ran candidates in the 1992 parliamentary election and first participated in government in 2005. It has come increasingly to dominate Lebanese politics. Its leadership and many of its followers subscribe to a concept that ties it to an ideological obedience to the religious opinion of Iran's Supreme Leader Ali Khamenei. 7. The military wing of Hezbollah is known as the Islamic Resistance, while the covert foreign operational arm is known as the External Security Organisation (ESO). 8. The United States has listed Hezbollah in its entirety as a terrorist organisation since 1997 and Canada has done so since 2002. Australia has listed the ESO as a terrorist organisation since 2003. New Zealand has listed Islamic Resistance since 2010, while the UK proscribed the ESO in 2001, Islamic Resistance from 2008, and the whole of Hezbollah in 2019. 9. The State submitted that by displaying the images or symbols associated with AMAL and Hezbollah, the defendant had made a statement within the meaning of s 10(1)(c) of the Act, alternatively, that the displaying was the carrying out of an activity to which that paragraph refers. So much can be accepted, and I did not understand the defendant to dispute it. The effect of the insertion of subs (1A) into the THRO Act is to deem the matters listed in that subsection as advocating support for any terrorist act or violent extremism for the purpose of paragraph (1)(c), whether or not the defendant has actually made a statement to that effect. 10. The significant enquiry is, therefore, whether AMAL or Hezbollah is an organisation that supports terrorist acts or violent extremism. The term "violent extremism" is not defined in the THRO Act nor, for that matter, in the Criminal Code. The Macquarie Dictionary rather unhelpfully defines "extremism" as "a tendency or disposition to go to extremes, especially in political matters". 11. The THRO Act forms part of a wider legislative response to terrorism, and specifically incorporates the definition of "terrorist act" in the Criminal Code of the Commonwealth. It can be seen from the definition of terrorist organisation in s 102(1)(a) of the Criminal Code that there is little to distinguish such an organisation from an "organisation … that supports terrorist acts or violent extremism". That means that a relevant consideration for present purposes is whether the organisations identified in s 10 of the THRO Act have been listed by the Commonwealth as terrorist organisations. It is of some significance that neither AMAL nor Hezbollah (except for its ESO) is a proscribed terrorist organisation by the Australian Government. 12. The Commonwealth has, in its listing of Hezbollah's ESO, explained how ESO relates to Hezbollah: The ESO sits under the military wing of Hizballah alongside, but distinct from, Hizballah's formal militia and military activity. The ESO operates as a discrete branch or entity within Hizballah. Hizballah is a political organisation with deep roots in Lebanese society. Founded in 1982 with Iranian assistance during the Israeli occupation of southern Lebanon, Hizballah has evolved into a multi-faceted organisation with political, social and military components. Within Lebanon, Hizballah represents the Lebanese Shia community, the country's largest sect, and maintains a social welfare network that encompasses education and health services. Hizballah also maintains a highly capable and well-resourced militia structured ostensibly to support its public policy to resist Israeli aggression, but also to defend and promote Shia interests in the context of Lebanon's historical and ongoing sectarian divisions. In 2006, Hizballah fought against the Israeli Defence Force and, since then, has been arming itself in preparation for future conflict. In 2013, Hizballah confirmed the organisation deployed combat forces in Syria, and has since provided military assistance to Syrian regime forces, Iranian and Russian troops, and pro-regime militant groups in Syria. The ESO - alternately known as IJO - was established in 1983, after Hizballah's attack on the US military in Beirut. The ESO sits under the military wing of Hizballah, alongside, but distinct from, Hizballah's formal militia and military activity. The ESO is a discrete branch or entity within Hizballah, responsible for procurement, intelligence, counter intelligence, surveillance, planning, coordination and the execution of terrorist attacks against Hizballah's enemies outside of Lebanon. Due to its secretive nature, within Hizballah information about the organisational structure of the military wing is not widely available. Since entering the Lebanese Parliament in 1992 and the government in 1995, Hizballah has sought to strengthen its public image as a respected resistance movement and shift its reputation as a terrorist group. This has resulted in the ESO operating independently of its parent body. This also reinforces Hizballah's need to distance the organisation from any activity that could be construed as terrorism. Consequently, Hizballah is unlikely to either claim responsibility for a terrorist attack or acknowledge any ESO activities. 1. The State submitted that, notwithstanding the distinction made by the Commonwealth, it was significant that a number of Australia's close allies had proscribed Hezbollah generally. The State submitted on that basis, and on what was contained in Dr Shanahan's report, the Court should conclude that Hezbollah generally should be found to be an organisation that supported terrorist acts or violent extremism. 2. In my opinion, strong evidence would be needed for the Court to reach a different conclusion from the Commonwealth about whether Hezbollah was an organisation that supported terrorist acts or violent extremism. Nothing said by Dr Shanahan casts any doubt on the analysis by the Commonwealth for the distinction it makes between Hezbollah and the ESO. The Commonwealth accepts that Hezbollah maintains a militia and that it had deployed forces in Syria to assist the Syrian regime. Notwithstanding, the Commonwealth did not list Hezbollah as a terrorist organisation. In my opinion, it would introduce confusion into the area of anti-terrorism if the Court were to reach a different conclusion when considering the meaning of a provision in anti-terrorist legislation which is directed to the same end. 3. It follows also that AMAL, which is at one remove, is also not an organisation that supports terrorist acts or violent extremism. The State submitted that it should be viewed in the same way Hezbollah was viewed because it was prepared, when necessary, to use its militia to support Hezbollah when its own interests were threatened. Dr Shanahan has cited only one occasion where AMAL's militia joined with that of Hezbollah, in the take over of West Beirut in May 2008. AMAL is not, and has never been, a proscribed terrorist organisation by the Commonwealth. Nor was there any evidence that any of Australia's allies had identified it as a terrorist organisation. 4. The State, therefore, fails to show that the defendant has made any statement or has carried out any activity advocating support for any terrorist act or violent extremism. In particular, the images or symbols, including flags, displayed by him on his body, on his Facebook page and in his house are not associated with an organisation that supports terrorist acts or violent extremism. The defendant is not, in that way, a convicted NSW terrorism activity offender. 5. On that basis, the application must be dismissed. (d) The offender poses an unacceptable risk of committing a serious terrorism offence 1. Whilst strictly unnecessary to do so, in deference to the submissions made concerning whether the defendant poses an unacceptable risk of committing a serious terrorism offence, I shall assume that, contrary to my earlier findings, the defendant is a convicted NSW terrorism activity offender on the basis that, at least, Hezbollah was an organisation that supports terrorist acts or violent extremism, and consider whether the defendant poses an unacceptable risk. 2. Although the State did not specify in its summons or in any particulars on which serious terrorism offence it relied (see Naaman (No 2) at [39]), it ultimately pointed to the offence under s 101.1(1) of the Criminal Code, of engaging in a terrorist act as defined. The State submitted that the act would be done with the intention of intimidating a section of the public. `The State relied upon the report of Ms Czerkies in relation to the issue of risk. It also relied on the answer to one question asked of Dr Shanahan, to which I will return in due course, 3. Ms Czerkies carried out a risk assessment of the defendant although she qualified her conclusions by noting that the defendant had not been interviewed for the purpose of her report and that her assessment was based on documents she had reviewed. In that context she said: 97. Mr Haider has not been interviewed for the purpose of this risk assessment, and therefore inferences about his political, religious or social ideologies have been made based solely on the information provided. Given this, it would appear that Mr Haider may maintain a specific ideology and that he seems to endorse the use of violence within a political context. (emphasis added) 1. Ms Czerkies drew attention to the defendant's clothing choices, tattoos, use of social media and association as showing that he may endorse violence within a political context. That evidence was objected to as not being based on Ms Czerkies' expertise, but I am satisfied that is so based. 2. Ms Czerkies said, fairly, however: 100. Notwithstanding [that] information, the exact content of Mr Haider's political orientation and the extent to which he endorses or condones violence within a political context is unknown. 1. The defendant objected to various parts of Ms Czerkies' report. That raised the issue of whether the whole report was nevertheless admissible by virtue of section 61 of the THRO Act and because it formed part of the supporting documentation (defined in s 4 as meaning, relevantly, the documentation referred to in s 23(3)), or whether objections in accordance with the rules of evidence could be made and upheld. Section 50 of the THRO Act provides: 50 Nature and conduct of proceedings (1) Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings. (2) To avoid doubt, a provision of this Act that provides for a document, report or other information to be admissible in proceedings under this Act despite any Act or law to the contrary does not affect any rule of evidence with respect to the relevance or probative value of the document, report or other information once it is admitted into evidence. 1. Section 50(2) sits somewhat uneasily with s 56 of the Evidence Act 1995 (NSW) which makes relevance the basis for admissibility. The result may be that evidence in a document otherwise admissible under s 61 will be found to have little or no probative value if it is not relevant. 2. The first objection taken was to paragraphs 86 to 94, on the basis that those assessments were not relevant to the risk of the defendant committing a serious terrorism offence. In my opinion, an assessment of the likelihood of the defendant committing violent offences is likely to inform the ultimate conclusion about the risk of the defendant committing a serious terrorism offence. 3. In terms of general risk assessment (as opposed to violent extremism) Ms Czerkies said the defendant had been administered the Level of Service Inventory-Revised (LSI-R) when he was in the community on 15 July 2019. His score of 34 out of a possible 54 was assessed as medium/high risk. The LSI-R Is a good predictor of general reoffending and a modest predictor of violence. On the Violence Risk Scale (VRS) the defendant's risk of violence fell within the high category of risk. The VRS is an actuarial risk assessment tool specifically developed to assess the risk of violence for forensic clients, in particular, those who are being considered for release from institutions to the community after a period of treatment. 4. Ms Czerties said that the process of risk assessment of violent extremism or politically motivated violence is comparatively new when compared to the risk assessment for general, violent and sexual offending behaviours. The frequency of violent extremism or politically motivated violence is significantly less than ordinary crime so that the sample size of people who actually engage in terrorist acts will never be large enough to allow the statistical power needed to determine the optimal quantitative combination of risk factor scores or to generate a final estimate of risk that does not rely in substantial part on clinical judgment. The assessment of risk of violent extremism cannot be anchored in statistical probabilities. Rather the overall risk judgment is based on the clinician's assessment of the available information at the time of assessment. 5. The two current protocols are the Violent Extremism Risk Assessment - version 2 Revised (VERA-2R) and the TRAP-18. 6. The VERA-2R while initially designed for use with offenders with a past or current charge or conviction of violent extremism, politically motivated violence or terrorism-related offences, is also applicable to persons who have been identified as a 'possible concern' and referred to intervention programs. 7. The TRAP-18 is not an actuarial measure of violence risk, in that items are not scored to determine a level of risk. Rather, it was developed to assist in structuring a narrative pertinent to a threat assessment of a person of concern for engaging in lone actor terrorism activity. 8. Based on the file information available to Ms Czerkies, the defendant's overall risk profile on the VERA-2R was assessed as being in the moderate to high range. 9. Ms Czerkies administered the TRAP-18 protocol on the file information. The TRAP-18 includes a set of eight warning factors that were developed to identify patters of proximal risk for intended or targeted violence, and a set of ten distal characteristics derived from empirical and theoretical research on lone actor terrorist that have been designed to capture the individual underlying motivations and influences. 10. Ms Czerkies found evidence of at least four proximal indicators and seven distal characteristics which appeared to have remained apparent for a significant period of time. When dealing with the distal characteristics, Ms Czerkies noted: 125. …[H]is current ideology remains unclear. Notwithstanding, Mr Haider has been observed to maintain a specific political orientation which would likely be used as a justification for future violence. Furthermore, Mr Haider has currently been linked to the AMAL Movement and has been observed to support a known terrorist organisation. The extent of these group connections remains unknown, however, based on the information available, it is likely that Mr Haider could engage in a grievance fuelled or politically motivated act of organised crime, violent extremism, or terrorism as either a lone actor or as part of an organised group cause (i.e., political, religious). 1. This passage was objected to by the defendant as speculation not based on Ms Czerkies' expertise. In my opinion, little probative value should be accorded to this passage. To the extent that the first two sentences are consistent with her at paragraph 100 of her report, they seem to emphasise that very little is known about the defendant's ideology or political orientation except that he supports AMAL. Moreover, if Ms Czerkies is suggesting that AMAL is a terrorist organisation, then there is no evidence to support that view. She otherwise does not say what the terrorist organisation is, although it may be Hezbollah. But as she acknowledges, nothing is known about that support or his "group connections", whatever the detail of that is. That is particularly relevant where Hezbollah is a political party in the government of Lebanon and not a group attempting to take over the government by force. 2. Ms Czerkies' conclusions are these: 137. Mr Haider presents as an individual who experienced a dysfunctional upbringing that may have encouraged the development of unhelpful attitudes towards violence. Emotional and avoidance based coping strategies were implemented at a young age in order to cope with the fractured familial unit, such as substance abuse and the seeking out of peer groups that could provide him with a sense of acceptance and belonging. Unhelpful peer associations and involvement with the criminal justice system from a young age contributed to education and occupational difficulties as well as the development of pro-criminal, anti-authoritarian and anti-social attitudes. These factors enabled Mr Haider to continue to engage in general and violent offending of both an expressive and instrumental nature. At this time, Mr Haider appears to be struggling with his substance abuse and dependency, decompensating mental health and the responsibility of court mandated orders. Despite ongoing access to positive familial and professional community supports, Mr Haider's appears to be in the precontemplative stage of change and as such has been observed to avoid addressing identified criminogenic needs and responsivity issues. 138. Mr Haider is currently being considered under the Act as a consequence of a range of problematic behaviours, … which could be considered as demonstrating his support of or possible willingness to engage in violent extremism, politically motivated violence or terrorism. Based on the outcomes of risk assessment protocols, Mr Haider has been assessed as being a medium to high risk of general offending, a high risk of violent offending, and a moderate to high risk of violent extremism, political violence or terrorism. He presents with a number of unaddressed criminogenic needs, such as anti-social and criminal peers and substance abuse. Various risk factors and indicators as well as vulnerabilities associated specifically with violent recidivism as well as violent extremism, political violence and terrorism have also been identified. Given Mr Haider's social media presence and representation, association between serious mental health symptoms and grievance/persecutory and homicidal ideations, potential volatility and his ability to access and stock weapons remain a significant concern. Based on the results of these combined risk assessments, Mr Haider appears to require ongoing monitoring and case management. Specific intervention strategies are outlined within the recommendations. 1. One of the questions asked of Dr Shanahan was: 8. On the basis of an overall appraisal of the documents provided, are you able to comment upon the beliefs that Mr Haider appears to hold, or the ideologies he appears to espouse? Are those ideologies/beliefs (taken together) similar to those advocated by any organisation or group with a connection to extremist or terrorist ideologies? 1. Dr Shanahan answered: 43. From what I have been presented it appears that Mr Haider is very supportive of the Amal Movement which in turn seeks to advance the political interests of the Shi'a community in Lebanon. When it sees those interests or those of its allies are sufficiently threatened it is willing to deploy armed members of the party to protect those interests. While Amal is not a proscribed terrorist group nor the subject of sanctions it is a close political and security ally of Hizbullah which is proscribed in whole or in party by Australia and its allies. 44. Mr Haider's tattoos and the photo of him holding a weapon wearing a camouflage jacket indicate that he is supportive of the militarized elements maintained by Amal in Lebanon. Amal's militia in turn have been known to cooperate closely with Hizbullah security elements indicating a commonality of cause. Given this I am satisfied that Mr Haider also supports a militarized form of Shi'a political expression. 1. The defendant objected to those paragraphs on the basis that the opinion was not based on Dr Shanahan's expertise. The defendant submitted that Dr Shanahan's report did not form part of the "supporting documentation" and was, therefore, subject to the usual rules of evidence for admissibility. The State sought to support its admissibility on the basis of s 25(3)(l) which provides: any beliefs or commitments of the offender (whether of an ideological, religious, political, social or other nature) that support engaging or participating in terrorism activities. 1. In her report at paragraph 97, Ms Czerkies drew attention to Dr Shanahan's conclusion that the defendant supports a militarised form of Shi'a political expression. That part of Ms Czerkies' report was objected to because she had relied on an inadmissible section of Dr Shanahan's report. 2. Dr Shanahan should not have been asked question 8. He is an acknowledged expert on the matters set out in paragraphs 1 to 5 of his report. He is not a psychologist or a psychiatrist. A psychologist or psychiatrist may be able to express a professional opinion about whether they think a person holds certain beliefs, but it is ultimately for the Court's determination at a final hearing whether that is so. A conclusion by a psychologist that a person holds a particular belief is not a "matter alleged" which if proved at a final hearing justifies the making of an extended supervision order. 3. The State ultimately indicated that it relied on Dr Shanahan's report in respect of a determination of the s 10 matter and not on the question of whether there was an unacceptable risk. I have considerable doubt that Dr Shanahan's report forms part of the supporting documentation for the purposes of s 23. It would only fall within s 25(3)(l) if Dr Shanahan was permitted to express an opinion about the defendant's belief, and he is not so permitted. 4. I consider that paragraphs 43 and 44, and the last sentence of paragraph 39 (which is in similar terms) are inadmissible. If his report forms part of the supporting documentation, I would accord it little probative value. Similarly, Ms Czerkies' reference to, and her seeming adoption of, Dr Shanahan's conclusion in that regard is of no probative value. 5. The State submitted that the following matters were directly relevant to establishing a risk of violence by the defendant done with the requisite intention emphasised by the Court of Appeal in Naaman (No. 2) at [39], [63]-[66] and [69]-[70]: (a) The defendant has demonstrated a capacity to source firearms and other weapons and has the capacity to use them for the purpose of threats and intimidation; (b) The defendant's apparent support or acceptance of violence and the use of firearms is abundantly clear from a review of the images of himself holding various guns (including variants of the AK47) in various positions on his Facebook page. Some of the images show him wearing camouflage or military style clothing; (c) Some of the images, including images in which the defendant is carrying a gun and wearing military style clothing, show the defendant's support for the militarised elements of the AMAL movement, as opined by Dr Shanahan; (d) The defendant has developed significant mental health problems, including becoming paranoid and experiencing auditory command hallucinations that instruct him to act in a violent manner towards others. He has a poor history of medication compliance, including in the latter half of 2019; (e) Those factors should be considered with the risk scenario identified by Ms Czerkies in paragraph 134 of her report, that the defendant's political and religious orientation may become more pronounced; that there may be an increase in hostility towards those who challenge his ideals or beliefs; and there may be a heightened emotionality and tendency to be impulsive. 1. In Naaman (No. 2) the Court of Appeal discussed what needed to be shown in relation to an offence created by s 101.1(1) of the Criminal Code. The Court said: [33] It will be seen that while "an action" or "threat of action" is defined to mean a "terrorist act", only pars (b) and (c), and not par (a), are framed in terms squarely picking up both action and the threat of action. That raises a threshold question as to the operation of par (a) in cases where the act is merely the threat of action, as opposed to action itself. [34] Although par (a) does not refer to "threat of action", it defines the parameters of "action", whether actual or threatened. That construction allows the application of subss (2) and (3) in every case. (To read par (a) as confined to actions rather than threats would limit the application of subs (2) and (3).) That construction accords with what was said by Gummow and Crennan JJ in Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 at [44]: "What is a 'terrorist act'? Section 100.1 of the Code contains various definitions of terms used in Pt 5.3. These include a lengthy definition of 'terrorist act'. This was introduced by the 2003 Act. A 'terrorist act' is defined as 'an action or threat of action' which has specified characteristics. The action must be done or the threat made with an intention answering two criteria. First, there must be the intention of 'advancing a political, religious or ideological cause'. Secondly, there must be an intention which is expressed in the alternative. The first alternative is 'coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country'. The second is 'intimidating the public or a section of the public'. The reference to 'the public' is stated to include a reference to the public of a country other than Australia (s 100.1(4)(b)). The action which is committed or threatened also must answer one or more of six criteria listed in sub‑s (2) of s 100.1. Action falls outside the definition if it be 'advocacy, protest, dissent or industrial action' and is not intended to cause serious harm that is physical harm to a person, or a person's death, or to endanger the life of a person other than the person taking the action, or to create a serious risk to the health or safety of the public or a section of the public (sub‑s (3))" [emphasis added] [citations omitted]. [35] It may be noted that the same approach was adopted in R v Lodhi [2005] NSWSC 1377; (2005) 199 FLR 236 at [49]. Accordingly, for the purpose of assessing whether the threat of action is a "terrorist act", one asks whether the threatened action falls within subs (2) and does not fall within subs (3). Further, if action or threat of action is to be a terrorist act, it must also satisfy both of pars (b) and (c), and so the action must be done or the threat made with the intentions identified in those paragraphs. 1. The defendant in Naaman was in many respects similar to the defendant in the present case. He had mental illness issues but, unlike the defendant in the present case, had also made some threats, whether joking or otherwise, which might have been interpreted as support for terrorism and an intention to carry out a terrorist act. 2. The Court of Appeal said: [63] In dispositive [98] of his reasons, the primary judge, with respect, correctly, identified the basic weakness in the State's case for an extended supervision order. Critical to the evaluative determination posed by s 20(d) is the risk of the respondent committing a serious terrorism offence. In the way the State propounded that risk both at trial and on appeal, this turned upon the risk of the respondent committing a "terrorist act". That in turn requires either action or the threat of action accompanied by both of the intentions specified in pars (b) and (c) of the definition. [64] True it is that the respondent has a history of crime, including violent crime. And it is true that, when apprehended, the respondent has had a history of responding aggressively, resisting arrest with threatened violence and, on at least one occasion, an actual struggle with apprehending police officers. [65] However, there is no evidence at all of violence, let alone serious violence, done with the intention of advancing a political, religious or ideological cause. Likewise, there is no evidence at all of violence, let alone serious violence, done by the respondent with the intention of coercing or influencing by intimidation a government or a section of the public. We did not understand the State to contend to the contrary. [66] Rather, the State's submissions turned upon what was said to be evidence of a threat of violence made with the intentions of (a) advancing a political, religious or ideological cause, and (b) coercing or influencing by intimidation a government or a section of the public. However, contrary to the State's submissions, the evidence does not disclose any significant threat of violence accompanied by either, let alone both, intentions. Rather, there is overwhelming evidence that the respondent, who is mentally unwell and has a history of not taking medication, has on occasion reacted violently and spontaneously. But that falls well short of a conclusion of the unacceptable risk which is a precondition for orders being made under the Act. 1. Much the same can be said in the present case. 2. There is no doubt that the defendant has been convicted of a number of offences of violence both as a juvenile and as an adult. However there was no evidence that any of the violence was done with the intention of advancing a political, religious or ideological cause. In the same way, there is no evidence that any of the violence is done with the intention of coercing or influencing by intimidation a section of the public. For the offence to amount to a terrorism offence both of those requirements must be met. 3. Nothing in the evidence suggests that any violence which the defendant might be taken to have threatened was with the intention of advancing a political, religious or ideological cause. The past violence had no such connection. Whilst I accept that there is certainly a risk of future violence, there is nothing to suggest that it will occur with the intentions contained in paragraphs (b) and (c) of the definition of terrorist act. Some of the past violence has been defensive as a response to the defendant's delusional and paranoid beliefs about the police. 4. There is no doubt that the defendant has serious mental health issues. The State submitted that those issues made it more likely that there was an unacceptable risk. However, those mental health issues may also explain or throw light on the defendant's behaviour, both in committing the offences he has and expressing the views that he has in relation to violence and other matters. For example, it is now known without any doubt that, contrary to what the defendant wanted to claim to the police about the methodology of bombing because he was in Beirut at the time in 2013, the material he provided to the police was no more than was in the public domain. To the extent that the defendant was not delusional in making the claim that he did, it has all the hallmarks of a person trying to big note themselves. In the absence of any other evidence suggesting that the defendant belongs to the AMAL movement or has connections to those in authority in it, the conversation set out at [32] above must be seen in the same light. 5. In Tillman, the Court of Appeal said of s 27 of the CHRO Act (the equivalent of s 54 of the THRO Act) at [39]: Section 27 states that the Act does not affect the right of any party to proceedings under the Act to call witnesses and give evidence, or to cross-examine witnesses. One would have thought such a provision unnecessary as regards the making of final orders. And the powers to make interim orders are capable of exercise from time to time, obviously, in light of the situation then prevailing. Accordingly, for s27 to have effective work to do, it would appear to be directed at the situation of an offender seeking to resist the making of an interim order where otherwise paras (a) and (b) of ss8 and 16 are formally satisfied. There is no reason why, for instance, an offender could not seek to establish that the matters alleged in the supporting documentation were incapable of proof. At the very least the provision reinforces the conclusion that "may" imports a judicial discretion. 1. The State principally relies on Ms Czerkies' conclusions derived from her application of the VERA-2R and the TRAP-18 protocols. Those conclusions must be seen in the light of two matters referred to by Ms Czerkies. First, she made the assessments without examining the defendant. Secondly, and perhaps as a result of the first matter she could neither identify the content of his political orientation nor the extent to which he endorsed or condoned violence within a political context. Those two matters go to the heart of the onus of proof, namely, that the Court is satisfied to a high degree of probability. 2. The first matter is of some significance when Ms Czerkies acknowledges, as I noted at [71] above, that the statistical power needed to generate a final estimate of risk will not be enough without substantial reliance on clinical judgment. Further, Ms Czerkies' inability to reach a conclusion on the second matter I have identified, leaves the evidence of essential matters in a deficient state. 3. If the matters alleged, being Ms Czerkies' conclusions based on her application of the two protocols, were proved, the making of an extended supervision order would not be justified because the Court could not be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious terrorism offence. Accordingly, even if I had been satisfied that the defendant was a convicted NSW terrorism activity offender, I would have dismissed the application. Orders 1. I make the following orders: 1. Summons dismissed. 2. The plaintiff is to pay the defendant's costs. ********** 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: 07 February 2020