State of New South Wales v Elomar (Preliminary)

[2021] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Elomar (Preliminary) [2021] NSWSC 403
Hearing dates:	8, 9 April 2021
Date of orders:	9 April 2021
Decision date:	09 April 2021
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Interim supervision order made with conditions
Catchwords:	HIGH RISK OFFENDER – Final hearing – Terrorism (High Risk Offenders) Act 2017 – application for an extended supervision order – interim supervision order granted until final orders made
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017 (NSW), ss 27 and 28
Category:	Procedural rulings
Parties:	State of New South Wales (Plaintiff) Ahmad Elomar (Aka Ahmed Elomar; AKA Charlie Jafesn) (Defendant)
Representation:	Counsel: J Emmett SC; M Dalla Pozza (Plaintiff) P Lange (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Kings Law Group (Defendant)
File Number(s):	2021/33506
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. This is a final hearing of the State's application for an extended supervision order (“ESO”) under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”) in relation to the defendant, Ahmed Elomar. Mr Elomar was subject to such an order made by Bellew J on 8 August 2018. That order expired on 24 January 2021. Toward the expiration of that order made by Bellew J in 2018, the State of New South Wales brought a summons seeking a further extended supervision order. On 15 December 2020, Beech‑Jones J made an interim supervision order (“ISO”). On 19 February 2021, Bellew J renewed the ISO for 28 days. On 19 March 2021, Bellew J renewed the ISO for a further 28 days, commencing on 21 March 2021.

2. The ISO currently expires on 17 April 2021 and it will not be possible for me to prepare and finalise a judgment by that time. I have been advised by senior counsel for the State of New South Wales, with no demurrer from the experienced counsel who appears for the defendant, that an extension can be made if I have reached the level of satisfaction required by s 27 of the Act. That is, before extending an ISO, I must be satisfied that the offender's current custody or supervision will expire before the proceedings are determined, and that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

3. Like Beech‑Jones and Bellew JJ before me, although based on slightly different evidence, I have reached that conclusion and that level of satisfaction. That is not in any way to betray or hint that I have reached any conclusion that a final order or ESO should or must be made. Because of sub-ss 28(7) and (8) of the Act, the total length of an ISO cannot exceed three months, which means that a decision must be made in this case by 23 April 2021. I propose to list the matter for judgment on the day before that, being Thursday, 22 April 2021.

4. Mr Lange, who appears on behalf of Mr Elomar, suggested that any ISO should reflect the amended form of the summons. The amendments that have been provided in the most recent version of the summons provide conditions that are less intrusive and restrictive than the original ESO made in 2018 or the current ISO. That submission may find favour if the ISO was to apply for an extended period of time, however, given the time limits provided by the Act, the expiration of the ISO is 23 April 2021, so any extension to the current conditions and strictures would be for a period of something like six or seven days. I accept the submissions made by Mr Emmett SC that there is potential for confusion if different conditions apply over that period.

5. Accordingly, I propose to make and do make an ISO in the same terms of that which currently exists, and that ISO will remain in force until Friday 23 April 2021.

6. I list the matter for judgment on Thursday 22 April 2021.

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Decision last updated: 23 April 2021