State of New South Wales v Elmir
[2023] NSWSC 1101
•14 September 2023
|
New South Wales |
Case Name: | State of New South Wales v Elmir |
Medium Neutral Citation: | [2023] NSWSC 1101 |
Hearing Date(s): | 06 September 2023 |
Date of Orders: | 14 September 2023 |
Decision Date: | 14 September 2023 |
Jurisdiction: | Common Law |
Before: | Harrison J |
Decision: | (1) Dismiss the application. |
Catchwords: | TERRORISM HIGH RISK OFFENDER – application for further extended supervision order – preliminary hearing – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – satisfaction to a high degree of probability – whether matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order – where materials disclose a conservative religious belief system but an affirmative denial of support for religious violence and terrorism – where state relies heavily on lack of affirmative denunciations of terror activities |
Legislation Cited: | Crimes Act 1900 (NSW) s 60A |
Cases Cited: | R v Elmir (No 3) [2019] NSWSC 1040 |
Category: | Principal judgment |
Parties: | State of New South Wales (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2023/201413 |
Publication Restriction: | Nil |
JUDGMENT
HIS HONOUR: By its summons filed on 23 June 2023, the State of New South Wales seeks a suite of orders in the usual form pursuant to several provisions of the Terrorism (High Risk Offenders) Act 2017. The State ultimately seeks an Extended Supervision Order against Mr Elmir for a period of 12 months. However, the proceedings come before me only for the preliminary hearing contemplated by s 24(4) of the Act.
As is well understood, s 20 of the Act empowers this Court to make an extended supervision order against Mr Elmir as an eligible offender if certain matters are established. Those matters include, in accordance with s 20(d), whether the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the order. With that fundamental test in mind, the issue to be decided by the Court at a preliminary hearing is circumscribed by subsections 24(5) and 24(7) of the Act as follows:
24(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 [qualified specialists] …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.
…
24(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.
It is agreed between the parties, and I am otherwise satisfied, that the evidence upon which the State relies establishes both that Mr Elmir is an eligible offender as well as each of the preconditions to the making of this application that are listed in s 20(a), (b) and (c) of the Act.
Background
On 16 August 2016, Mr Elmir pleaded guilty before Davies J to an offence involving committing acts in Turkey between April and June 2016 in preparation for incursion into Syria for the purpose of engaging in hostile activities, being reckless as to the fact that the conduct was preparatory to the commission of an offence under s 119.1 of the Criminal Code 1995 (Cth). Mr Elmir was sentenced by his Honour to a term of imprisonment of 5 years, with a non-parole period of 4 years and 1 month: R v Elmir (No 3) [2019] NSWSC 1040. Regrettably, in what seems now to have become a standard and predictable outcome in such cases, Mr Elmir was never released to parole and remained in custody until the expiration of his head sentence on 21 September 2022.
The circumstances of the foreign incursion offence can be shortly stated. Mr Elmir travelled to Turkey in 2016 and stayed in an Islamic State safe house for two months. He attempted to gain entry into Syria allegedly with a view to taking an active part in hostilities against the Assad regime. Mr Elmir was arrested by Turkish authorities before this could occur and placed in immigration detention.
Mr Elmir had pleaded guilty to this offence. Part of the agreed facts were that he had “accumulated some 70 kilograms of military equipment”. The facts do not otherwise specify what that military equipment was. It is never referred to in specific terms other than as an assumption. Davies J was not apparently told what it was intended to involve. My inquiries of senior counsel for the State in these proceedings did not clarify the matter. By reason of the potential significance of the precise details of the “military equipment” concerned, I note for my part the very troubling fact that the equipment has never been described in anything other than generic terms. Military equipment could describe guns and hand grenades at one level of seriousness or camouflage fatigues and army boots at another. I am accordingly unable to make any reliable assumptions when considering this issue.
In support of the present application, the State made the following submissions about the offence:
“14. The foreign incursion offence reveals that the defendant was prepared to go to extreme lengths in pursuit of his religious beliefs. He made a number of attempts to gain entry to a war zone in an effort to fight on behalf of a proscribed terrorist organisation. He obtained military equipment for that very purpose. Had he been successful in entering Syria, he may well have committed offences that would, by virtue of the extended geographical application of the Criminal Code … have amounted to serious terrorism offences. Specifically, he may have committed acts of serious violence in order to advance a religious or ideological cause with the intention of coercing the government of a foreign country, or intimidating the public or a section of the public.
15. In any event, the defendant’s conduct demonstrated a strong sense of affiliation with an organisation that notoriously encourages violence against non-Muslim citizens in western countries.”
On 20 December 2019, Walton J imposed an extended supervision order on Mr Elmir for a period of 12 months: State of New South Wales v Elmir (Final) [2019] NSWSC 1867. That extended supervision order is due to expire on 20 September 2023.
The foreign incursion offence was not an index offence for the purpose of that extended supervision order. The index offences occurred when Mr Elmir was on remand on 20 February 2018. Mr Elmir punched a Corrective Services officer and then assaulted another officer during the ensuing struggle. He was convicted of two counts of assault of a law enforcement officer in the execution of his duty and inflicting actual bodily harm, contrary to s 60A(2) of the Crimes Act 1900. Mr Elmir was sentenced to wholly concurrent terms of 6 months and 8 months imprisonment, expiring respectively on 17 January 2019 and 17 March 2019.
Submissions
The State submitted that Mr Elmir has held extreme religious beliefs for a lengthy period of time, and has demonstrated a willingness to take very significant steps towards engaging in violent conduct in connection with those beliefs. The State acknowledged observations by Ms Naomi Prince, a psychologist, that there appears to have been some reduction in the risk posed by Mr Elmir but submitted that the primary change in that respect "relates to contextual changes to global politics rather than a specific change to his beliefs".
The State submitted that in the circumstances, and having regard to the strength of the observations in the various earlier expert reports regarding the risk posed by Mr Elmir, as well as the protective objects of the Act, the matters alleged in the supporting documentation would, if proved, satisfy me to a high degree of probability that Mr Elmir poses the relevant risk.
It was submitted on behalf of Mr Elmir that the evidence that he poses any risk of committing a serious terrorism offence, even taking the State's case at its highest, is equivocal. It shows Mr Elmir has never expressed support for terrorism, as opposed to religiously motivated violence in the context of armed conflict. The evidence is that he no longer expresses support for violence generally, that he has never engaged in, or expressed any intention to engage in, the planning, preparation or execution of a terrorist act in Australia.
Mr Elmir contends that the State relies, to a significant degree, upon speculation as to what might occur should certain unknown and unknowable circumstances arise in the future. He submitted that the evidence, taken at its highest, is not capable of satisfying me to a high degree of probability that the risk of Mr Elmir committing a serious terrorism offence is unacceptably high.
Further, Mr Elmir submitted that, in the alternative, the evidence does not establish that a further extended supervision order would reduce the risk, to the extent that it exists at all. It was submitted that the imposition of a supervision order may well be counterproductive in the sense that it may create circumstances similar to those that led Mr Elmir to be influenced by extreme religious material in 2016. He submitted that this was sufficient reason to exercise the discretion to refuse to make an order, even if the test is satisfied.
Consideration
In support of this application, the Crown tendered two volumes of material, which for present purposes can be taken to be the “supporting documentation” as that expression is used in the Act. Included in that material are a large series of what amount to risk assessment reports relating to Mr Elmir.
Ms Prince conducted a risk assessment of Mr Elmir in connection with the proceedings that resulted in Walton J’s decision. That report is dated 17 June 2022. Ms Prince concluded at that time that Mr Elmir posed a “moderate to high” risk of engaging in “religiously motivated violence, violent extremism or terrorism activity”.
Ms Prince has since prepared an updated risk assessment report dated 5 June 2023. Mr Elmir participated in an interview in connection with that report but was generally unwilling to discuss his beliefs. Ms Prince’s ultimate conclusion was that “Mr Elmir is considered to present with a moderate risk of supporting, promoting, or engaging in violent extremism related behaviour.” That conclusion is discussed later in these reasons. However, it must necessarily be seen in the context of several other conclusions arrived at and referred to by Ms Prince. The following comments and opinions, extracted from Ms Prince’s latest report, should therefore be closely scrutinised.
First, paragraph 97:
“97. If given the option, Mr Elmir would prefer to live in a Muslim majority country, under Sharia law. He noted that this would allow him to live in line with his beliefs and the life of the Prophet Mohammad. Mr Elmir does not believe this will be possible for him given his offence history. He believes he will not be eligible for a new passport or accepted by other countries on a travel visa. He appeared generally accepting of this. Mr Elmir has previously reported being happy to live in Australia and does not demonstrate overt hostility toward Australia. He does however express concern with Australian culture and values which are ‘un-islamic’, i.e., music, sex outside of marriage, alcohol, drugs etcetera. Since his release to the community, he has actively sought ways to ensure that he is compliant with his order whilst simultaneously not compromise his religious beliefs. For example, Mr Elmir had requested the CSNSW sticker containing the ‘coat of arms’ be removed from the charging function of his electronic monitoring equipment, to ensure that he was not wearing symbols of another religion on his body. He has sought employment overnight to minimise any disruption to prayer. Mr Elmir’s approach to managing areas of potential conflict have been appropriate. Whilst his rigidity is likely to continue to lead him to situations of conflict, he has demonstrated some capacity for pluralism (even if he does not recognise it as such).”
It is not in issue that Mr Elmir holds strict, possibly even extreme, religious beliefs to which he rigidly adheres. No criticism can be levelled at him because of that. It is apparent, as Ms Prince observes, that Mr Elmir encounters difficulties in Australian society to the extent that our secular culture is often at odds with Islamic tradition in general and Mr Elmir’s interpretation of it in particular. Notwithstanding that conflict, Mr Elmir is “happy to live in Australia and does not demonstrate overt hostility toward Australia”. Moreover, Mr Elmir “has actively sought ways to ensure that he is compliant with his [extended supervision] order whilst simultaneously not compromise [sic] his religious beliefs.” Those matters bear significantly in my opinion upon the assessment of any relevant risk that Mr Elmir may be thought to pose.
Secondly, paragraph 99:
“99. Mr Elmir continues to demonstrate a lack of trust in the police or policing processes. This largely stems from prior experiences with the police as a young adult. Despite this, Mr Elmir does not present with overt hostility toward police or the legal system. He has been generally described as polite during his interactions with the High Risk Terrorism Offender Unit (HRTOU) police. In interview, Mr Elmir discussed prior conflict with CSNSW custodial staff and reported it to align directly to individuals he had conflict with rather than the broader system. He does believe that rules and laws of Australia are unfairly targeted toward Muslims (including terrorism related legislation), however this was presented in a matter-of-fact manner, rather than highly emotive or reactive. Whether this was contained due to the context of this assessment is unknown.”
Considering Mr Elmir’s involvement with police and the policing process, it is not difficult to understand his lack of trust. Having been sentenced to a term of imprisonment with a specified non-parole period, the fact that he was never released to parole, despite a reasonable expectation that he would have been, it is unsurprising that he maintains such feelings. However, and somewhat remarkably, “Mr Elmir does not present with overt hostility toward police or the legal system”. This seems to me to be a circumstance of considerable importance in the context of the present inquiry.
Thirdly, paragraph 100:
“100. Mr Elmir denies that he supports the use of violence; however, he was unwilling to discuss the parameters of his political and religious views. He was unwilling to denounce the actions of others noting that the fact he has stated that he does not / would not support them should be sufficient. Given the vague nature of his statements, it is difficult to gain a thorough understanding of Mr Elmir’s belief system. There appears little shift in his worldview and rather a shift in the global context surrounding him. For example, Mr Elmir’s beliefs supported his decision to attempt to enter Syria to fight the Asaad regime. The same beliefs led to conflict with the Emir in Turkey resulting in his being ‘kicked out’ of the safe house. Mr Elmir describes disillusionment with ISIS and a question surrounding their legitimacy. The question regarding the parameters of what violence would be religiously justified remains unknown. He denies support for violence on Australian soil or a willingness to support others to act; however, his writings and communications do suggest support for violence in the context of war/self-protection. This fundamental belief system could leave him vulnerable to accepting religiously motivated violence in the ‘right’ conditions. Such conditions are not well understood by the author.”
This paragraph of Ms Prince’s report raises a matter that is evident throughout that report and which also emerges in other expert assessments of Mr Elmir’s risk profile. It is apparent that Mr Elmir is generally disinclined to engage in conversations or other forms of interaction with authorities, including medical practitioners or psychological professionals sent to examine him. For example, as noted in this paragraph, Mr Elmir “was unwilling to discuss the parameters of his political and religious views.” This unwillingness has unfortunately rebounded to Mr Elmir’s disadvantage in two ways. On the one hand, it has raised concerns with experts, of whom Ms Prince is one, that Mr Elmir is unwilling to engage, the inference being that it is not possible to understand Mr Elmir’s risk of committing a serious terrorism offence unless he explains his position in terms when asked. On the other hand, sometimes, although not without exception, answers given by Mr Elmir when questioned that appear to be favourable to him are discounted or devalued as potentially self-serving and disingenuous. So for example, Ms Prince notes that Mr Elmir “denies support for violence on Australian soil or a willingness to support others to act; however, his writings and communications do suggest support for violence in the context of war/self-protection.”[Emphasis added] It should, of course, be remembered that the fact that his “fundamental belief system could leave him vulnerable to accepting religiously motivated violence in the ‘right’ conditions” does not actually engage with the risk to which s 20(d) of the Act specifically refers.
Fourthly, paragraph 102:
“102. The author does note, that despite Mr Elmir’s rigid ideology, he has been monitored since 2016 and throughout that time, based on the information provided to the author, there is no indication that he has ever been involved nor implicated in any planning and/or preparation activity, identifying a target (or even having a clearly identified enemy), or expressing any intention to commit acts of violent extremism (or support those who do). He denies intention to engage in terrorism activity and states an unwillingness to support others to do so. Despite this, given that Mr Elmir will not overtly denounce the actions of those who have committed extremist/religiously motivated violence or terrorism activity, it is unknown if he would actively stop an event occurring if he were aware of it.”
This paragraph is, with respect to Ms Prince, another example of the tendency to which I have referred in the preceding paragraph. Everything in Ms Prince’s descriptions in this paragraph is favourable to Mr Elmir. As Ms Prince has observed, Mr Elmir “denies intention to engage in terrorism activity and states an unwillingness to support others to do so”. That plainly unambiguous position is, however, immediately discounted by reference to Mr Elmir’s failure overtly to denounce the terrorist actions of others. Moreover, Ms Prince’s concern that “it is unknown if he would actively stop an event occurring if he were aware of it” once again appears illegitimately to place some obligation of denial upon Mr Elmir and to raise the spectre of doubt until he discharges it. These are matters that I consider must be taken into account in the assessment of whether the State has demonstrated that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Fifthly, paragraph 109:
“109. In considering the overall assessment of all available information, Mr Elmir is considered to present with a moderate risk of supporting, promoting, or engaging in violent extremism related behaviour. This is likely to be driven by perceived religious or moral obligation, in response to a perceived threat toward the broader Muslim community. Based on the information provided, there is no indication that Mr Elmir is nor has been, implicated in active engagement in the planning or preparation of terrorism related activity in Australia. Since his release to the community, Mr Elmir has been generally compliant with the ESO conditions, noting breach-related behaviour appears primarily related to the compliance with order conditions (such as scheduling) rather than risk-specific related behaviours. Mr Elmir has more recently gained a driver’s licence, obtained a registered vehicle with the assistance of his parents, lives in a detached, self-contained ‘granny flat’ in the rear of his parents’ property, obtained his forklift licence and secured and has maintained employment since April 2023. He has actively chosen to limit his activities and social connections due to the current ESO. He attends Mosque and work, and appointments where necessary. His social connections have been limited to his family. There have been no significant adjustment concerns since his release from custody.”
At least two things can helpfully be said with respect to this paragraph. First, and without expressing or implying any criticism of Ms Prince, her assessment of Mr Elmir’s moderate risk describes a risk of “supporting, promoting, or engaging in violent extremism related behaviour” rather than a risk of committing a serious terrorism offence. The distinction may appear to be merely pedantic but should not be overlooked. However, secondly, and in my opinion very importantly, the remainder of the paragraph is nothing short of an unqualified and resounding endorsement of a quite different assessment. There is to that extent what appears to be a significant tension between Ms Prince’s conclusion based upon an “overall assessment of all available information” and a (unexpressed) conclusion that one might reasonably arrive at based instead upon what she describes as “the information provided”. Everything to which Ms Prince refers after her reference to “the information provided” seems to me to be wholly inimical to her conclusion concerning the existence of a moderate risk. It is not surprising that Mr O’Donnell of senior counsel for Mr Elmir has placed considerable emphasis upon these matters in his response to the State’s contentions.
Sixthly, paragraph 111:
“111. Mr Elmir continues to hold rigid beliefs which could make him vulnerable to engaging in or supporting religiously motivated violence – the likely context or parameters of which are unknown. Whilst subject to the ESO, Mr Elmir has not demonstrated any significant behaviours or concern, however, he has also intentionally chosen to restrict his reintegration in lieu of waiting for the monitoring and supervision of the order to cease. Mr Elmir has goals of getting married and starting a family, although is unlikely to pursue this whilst subject to an ESO. The fact that the ESO is currently preventing Mr Elmir from reintegrating into the community that is consistent with his goals is concerning, both for his successful reintegration and to fully understand the impact of the containment effect of the order. Mr Elmir is actively choosing to restrict his social and leisure activities whilst subject to the order. It is unknown if the order is limiting unhelpful peer connections and online activity; or if this is a volitional choice which Mr Elmir will maintain long term.”
Ms Prince refers to the fact that “Mr Elmir has not demonstrated any significant behaviours or concern” but appears to imply that he is keeping his head down until the extended supervision order that affects him ceases to apply. Once again, Mr Elmir is foist with a conclusion about him that actively, and in my view unfairly, deprives him of the benefit of any doubt. For example, the fact that Mr Elmir has restricted his social activities is entirely or at least equally consistent with an appreciation that the restrictions to which he subject are best met in isolation and away from influences that may be troublesome. That is a circumstance that should be added to the credit side of Mr Elmir’s ledger rather than constituting a matter that only raises suspicion about his motives.
Seventhly, paragraphs 114 and 116:
“114. Mr Elmir maintained in interview that whilst he did attempt to travel to Syria, join ISIS and was willing to engage in hostile activity; he has not, nor has he intended to engage in terrorism activity in Australia. There is no information provided to the author contrary to this.”
“116. Mr Elmir denied any willingness to support others to engage in terrorism activity either in Australia or overseas. He was unwilling to provide comment (which he perceived as passing judgment on other Muslims), of the actions of persons who have engaged in terrorism activity in Australia. He reiterated that he does not and would not support anyone to engage in religiously motivated (or justified) violence. Again, there is no information provided to the author contrary to this.”
These paragraphs invite no comment, apart from the obvious fact that they do not support the State’s contentions in this case.
Eighthly, paragraph 118:
“118. Based on the information provided to the author there is no indication that Mr Elmir demonstrates an intention to engage in or promote terrorism activity in Australia. Despite this, it is unknown if the restrictions of incarceration and more recently intensive supervision and monitoring impacts this. Mr Elmir has demonstrated reasonable organisational skills and resourcefulness. The extent of formal or informal weapons training Mr Elmir had overseas continues to be unknown. Whilst Mr Elmir denies having had access to weapons and expressed that his ‘military equipment’ in Turkey related to camping gear, he has also previously reported having engaged in ‘terrorist things’ whilst at the safehouse. When arrested, Mr Elmir’s phone history demonstrated he had an interest in weapons including knives and guns. More recently he has reported that he accidentally searched ‘Gun shops near me’ when he intended to search Gumtree”. Mr Elmir has historical links to criminal peers and through his incarceration has solidified personal connections to people charged with and/or convicted of terrorism related offences in Australia. Whilst the current ESO requires all relationships to be ‘approved’, Mr Elmir has chosen not to engage with any peers whilst subject to the order. It is unknown if Mr Elmir will resume relationships with persons of concern and what impact this may have on his pro-social reintegration. As noted above however, there is no information that has been provided to the author to suggest that Mr Elmir has ever been implicated in terrorism activity (including supporting behaviours) in Australia.”
This paragraph throws into stark relief the test that must be met in the ultimate disposition of the State’s application for an extended supervision order against Mr Elmir. There is “no indication that Mr Elmir demonstrates an intention to engage in or promote terrorism activity in Australia”. Moreover, Ms Prince was provided with “no information…to suggest that Mr Elmir has ever been implicated in terrorism activity (including supporting behaviours) in Australia”. That is said to be in contrast with his having attempted to enter Syria in 2016 with 70kg of unspecified and unrecovered “military equipment”. The comparison between Mr Elmir’s historical activities and the fact that he has never been implicated in terrorism activity in Australia, including, significantly, supporting behaviours, is not one that favours a view that Mr Elmir poses the risk to which s 20(d) of the Act refers, as opposed to some lesser risk or none at all. I remind myself that the satisfaction to be achieved, before the State’s application can succeed, is satisfaction to a high degree of probability.
Finally, Ms Prince was asked to respond to a series of questions, of which the following should be noted:
“Q5 Does Mr Elmir pose a risk of committing a serious terrorism offence if he is not kept under supervision? If yes, please identify the level of risk and the factors contributing to that risk?
Based on all available information to the author at this time, Mr Elmir does not present with any proximal behavioural indicators that suggest he is on a pathway toward engaging in any form of violent extremist or terrorism related activity. He does, however, present with significant vulnerabilities primarily associated to his rigid beliefs (the parameters of which are unknown by the author), religious and moral superiority and ‘us and them’ mentality. He has a history of problematic online behaviour, consuming violent extremist propaganda and religious sermons which justify (and in some instances likely promote) violence and connections to peers of concern both in terms of criminal peers and those linked to violent extremism and terrorism. Mr Elmir previously identified as being a part of ISIS. Whilst he currently states he does not support ISIS, describing a general disillusionment with the group, he has not overtly denounced them or others who have engaged in terrorist activity. Mr Elmir reports he does not support religiously motivated violence and would not support others to engage in activity either in Australia or overseas; he is unwilling to provide details of the parameters of his beliefs which align with religiously justified violence. Mr Elmir is currently subject to high levels of monitoring, and he has noted that he chooses to restrict his social network and leisure activity whilst subject to the order. This limits the author’s ability to recognise the containment effect of the ESO. Overall and based on all available information, Mr Elmir’s risk of engaging in violent extremism is assessed as being in the moderate range. The details of this assessment and associated risk scenarios have been outlined in paragraphs 92 to 120.”
This paragraph is consistent with the themes evident in Ms Prince’s earlier remarks. It will be apparent that, despite being asked for her opinion upon the ultimate s 20(d) issue, her response is instead one that deals not with serious terrorism offences but with “violent extremist or terrorism related activity”. However, I do not consider that fact to be critical or determinative: Ms Prince’s view, clearly expressed, is that “Mr Elmir does not present with any proximal behavioural indicators that suggest he is on a pathway toward engaging in any form of violent extremist or terrorism related activity.” However, for my part, I cannot reconcile that statement with Ms Prince’s conclusion that “overall and based on all available information, Mr Elmir’s risk of engaging in violent extremism is assessed as being in the moderate range”. Once again, with respect to Ms Prince, I am simply unable to accommodate the proposition that Mr Elmir evinces no proximal [sic, proximate] behavioural indicators suggesting he is on a pathway to violent extremism or terrorist activity with an assessment that he is coincidentally at moderate risk of doing so.
Ms Prince’s report is not the only report concerning Mr Elmir. The supporting documentation upon which the State relies is far more detailed and extensive. I have considered as much of it as possible, but in particular I have taken account of all expressions of opinion concerning the existence or otherwise of the risk in question here, even though in some cases the description of the risk does not necessarily accord with the risk of committing a serious terrorism offence as defined by the Act. I have also taken account of the remarks of Davies J in sentencing Mr Elmir in 2019 and the decision of Walton J in ordering extended supervision in 2019. I have in doing so considered the various categories of information to which the Act draws attention (s 25(3)) and I have also taken into account the paramount consideration of the safety of the community: s 25(2).
Conclusions
Bearing these things in mind, it seems to me that the State’s approach to the establishment of the relevant risk is distinctly subjunctive. The supporting documentation appears to me to suggest no more than a series of arguable possibilities about whether Mr Elmir poses an unacceptable risk, rather than the existence of a state of satisfaction, let alone a state of satisfaction proved to a high degree of probability, that he does so. An example of this can be seen in the State’s submissions, quoted at [7] above, that Mr Elmir “may well have committed offences that would” etcetera, and “he may have committed acts of serious violence in order to advance a religious or ideological cause”. It is in my view insufficient for the State merely to identify a series of hypothetical risk possibilities which the evidence cannot be seen to elevate to a high degree of probability.
The elements of s 20(d) of the Act were considered by the Court of Appeal in State of New South Wales v Naaman (No 2) [2018] NSWCA 328 where the key aspects of the provision were summarised at [29]:
“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.
(a) 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.
(b) 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.
(c) 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’.
(d) 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.
(e) 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.
(f) 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.”
It is particularly instructive, in the light of these principles, to note Ms Prince’s most recent conclusion, published only fourteen days ago, in her Confidential Psychological Risk Assessment Report dated 31 August 2023:
“CURRENT ASSESSMENT AND RECOMMENDATIONS
19. Based on the additional information provided, it remains the authors view that there is nil indication that Mr Elmir is engaging in any proximal or pathway behaviours currently. Whilst he reports that he no longer aligns with ISIS, he does not and will not actively denounce the group or their actions (or any other Islamic group). Through his offence pathway work with his EO, he continues to maintain that he did not travel overseas with an intention of supporting ISIS but rather in opposition to the Asaad regime and to protect the Muslim community. According to the ESP file notes, Mr Elmir is reported to be well versed on Salafism and its socio-religious resistance to Western Imperialism. He reported his interest in engaging with Salafi mentor/Iman on Islamic content and engage in further studies in the area.
20. The file information suggests that Mr Elmir continues to provide a level of religious authority or influence over his brother/s and an intent or desire to inform/educate his nephew (OIMS note 14/04/2023). Whilst there is nothing available to suggest that Mr Elmir is supporting or promoting religiously motivated or justified violence he does maintain a rigid belief system which does not lend itself to tolerance of others and likely promotes a sense of disconnect to the broader Australian community.
21. As outlined in the most recent report, Mr Elmir maintains a strong connection to his religion and furthering his religious knowledge. Given his strong religious conviction, he will likely continue to seek out information which is rigid, and which encourages an ‘us and them’ narrative. He maintains a tendency toward perceived grievance and injustice on a personal, group and global level and fundamentally believes in the moral superiority of Muslim persons. His willingness to engage with a mentor and be respectful and engaged in theological discussion is likely the most significant intervention need for Mr Elmir. Ensuring an appropriate match is essential, which appears to be the case with the identified theological mentor through ESP. It is important that Mr Elmir respects the person and their learnings, for there to be any success in assisting him in building tolerance for others and adopt more pluralistic values.
22. The brief continues to indicate Mr Elmir is currently making helpful choices by engaging in voluntary services, maintaining employment, familial support and stable accommodation. The ongoing restrictions he places on himself in terms of movements, social connections, activities, employment aspirations and relationships make it difficult accurately [to] assess behavioural change versus a containment effect. Mr Elmir has indicated his reason for engaging with services is to avoid being subject to a second order. Whilst fundamentally the source of motivation can be irrelevant if the treatment process is fully embraced, the limited period of engagement, minimal meaning progress and unclear intervention goals make it difficult to form an opinion on the likelihood of any sustained change.
23. If the current supervision order ceased on 20 September 2023, Mr Elmir will continue to have access to ESP. Whether he will continue to do so remains unknown.
24. It continues to be the authors view that Mr Elmir would benefit from continuing to engage in voluntary disengagement services, and in particular engaging with a religious mentor who can meaningfully and respectfully engage in religious debate and seek guidance from, including assisting him to navigate the concept and practice of pluralism without feeling like he is compromising his religious commitment.
25. Despite the further positive progress Mr Elmir appears to have made, the short-time period of engagement, the context of engagement i.e., to avoid another order; a limited understanding of Mr Elmir’s religious beliefs; and his choice to maintain a restricted regime whilst subject to the ESO make it difficult to provide an informed opinion of his likely trajectory at the cessation of the order. Overall, the author maintains the views, opinions and recommendations outlined in the most recent report dated 5 June 2023.” [Emphasis added]
I am particularly troubled that Ms Prince’s acknowledged difficulty providing an informed opinion of Mr Elmir’s likely trajectory at the cessation of the current order, a position that I accept without question is Ms Prince’s well-documented and genuinely held expert opinion, should somehow be permitted to displace the requirement of an evidence-based conclusion of which I can be satisfied having regard to the high degree of probability required. Anything other than an informed opinion in my view invites speculation and is contrary to authority.
The high degree of probability test that must be satisfied is no more or less than a statutory recognition of the extraordinary interference with a defendant’s rights that the imposition of an order under the Act represents. As Naaman makes clear, if it were not otherwise plain, the exercise called for is not a matter for speculation. Skilful and well-credentialed experts, such as Ms Prince, offer their best assessment of the risk but as they universally and properly accept, the question of whether the requisite degree of satisfaction has been met is ultimately one for this Court to decide: the expression of an opinion by an expert upon the ultimate issue concerning the existence or quantification of the putative risk is no more than a piece of evidence that I am entitled – indeed required – to evaluate along with all of the other supporting documentation.
Having done so, I am not satisfied to the requisite degree that Mr Elmir poses the risk alleged: that is to say, following the preliminary hearing, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order against Mr Elmir.
Orders
In my opinion, the following orders should be made:
(1)Dismiss the application.
(2)Order the State of New South Wales to pay Mr Elmir’s costs.
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