Hardy v State of New South Wales

The New South Wales Court of Appeal, constituted by Basten, White and McCallum JJA, considered an appeal by Mr Hardy against a decision of the Common Law Division that he was an eligible offender for the purposes of an extended supervision order under the *Terrorism (High Risk Offenders) Act 2017* (NSW). The dispute centred on whether Mr Hardy's conduct, specifically the delivery of letters threatening a member of the State Parliament, constituted advocating support for a "terrorist act" or "violent extremism" as defined by the Act, and whether he posed an unacceptable risk of committing a serious terrorism offence.

The Court was required to determine two primary legal issues. Firstly, whether the delivery of letters containing threats, which were visible to parliamentary staff who received them, satisfied the definition of advocating support for a terrorist act or violent extremism under section 10(1)(c)(i) of the Act, notwithstanding that the offender did not personally carry out violent acts. Secondly, the Court had to assess whether the trial judge erred in finding an "unacceptable risk" of the offender committing a serious terrorism offence under section 20(d) of the Act, particularly in relation to the rejection of expert evidence concerning the effect of the offender's transient delusional disorder and the reliance placed on the offender's failure to give evidence.

In its reasoning, the Court affirmed that the definition of an eligible offender under section 10(1)(c)(i) requires a "double intention": the intention to advocate support for a terrorist act or violent extremism, and the intention that the advocacy be understood by others as such. The Court found that the delivery of the threatening letters, visible to parliamentary staff, met this requirement, as the offender intended for the threats to be perceived. The Court also upheld the trial judge's assessment of unacceptable risk, finding that the rejection of expert opinions regarding the offender's delusions was justified, particularly in light of the offender's own failure to give evidence to support his claims about the impact of his mental state. The Court concluded that the trial judge was entitled to rely on the evidence presented and the offender's silence in making the determination.

The appeal was dismissed, affirming the judgment of the Common Law Division delivered on 26 July 2021.