State of New South Wales v Fayad (Final)

[2021] NSWSC 294

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Fayad (Final) [2021] NSWSC 294

Hearing dates:

24-26 February 2021

Date of orders:

27 February 2021

Decision date:

26 March 2021

Jurisdiction:

Common Law

Before:

Wright J

Decision:

1. Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of 2 years from the date of this order, or from when the defendant’s current supervision expires, whichever is the later (the ESO).

2.   Pursuant to s 29(1) of the Act, the defendant is to comply with the conditions set out in the schedule to this order for the duration of the ESO, subject to any variation of the conditions by the Court as a result of an application for variation made in accordance with order 3 of these orders.

3.   The defendant has leave to apply to vary the conditions referred to in the preceding order 2 by filing and serving a notice of motion specifying the variations sought on or before 12 March 2021.

4.   If a notice of motion is filed in accordance with preceding order 3:

a.   The defendant is to file and serve any evidence and submissions on which he relies in support of the notice of motion on or before 12 March 2021.

b.   The plaintiff is to file and serve any evidence and submissions on which it relies on or before 26 March 2021.

c.   The defendant is to file and serve any evidence and submissions in reply on or before 2 April 2021.

d.   The notice of motion is listed for hearing before Wright J on 6 April 2021.

5.   Access to the Court’s file in this proceeding, other than these orders, is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

HIGH RISK TERRORISM OFFENDER – Final hearing – Application by the State for extended supervision order – Convicted NSW terrorism activity offender – Whether Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – Where defendant convicted of whipping fellow Muslim to administer Sharia law – Where defendant refused to renounce his offending and stated only that he lacked authority to carry out the punishment – Defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism and terrorist organisations – Where defendant involved in conversion to Islam, as he understood it, of those with whom he came into contact – Where defendant was a guide and mentor with engaging personality capable of exerting significant influence over younger or vulnerable persons – Relevant risk of commission of serious terrorism offence established – ESO granted subject to conditions

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code (Cth)

Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD)

Evidence Act 1995 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

CXZ v Children's Guardian [2020] NSWCA 338

Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46

Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189

Khalid v R (2020) 102 NSWLR 160; [2020] NSWCCA 73

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

Minister for Home Affairs v Benbrika [2021] HCA 4

R v Alqudisi [2016] NSWSC 1227

R v Biber [2018] NSWSC 535

R v Musleh (No 5) [2018] NSWSC 1927

R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365

State of New South Wales v Barrie (Preliminary) [2019] NSWSC 856

State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280

State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681

State of New South Wales v Naaman (No 2) [2018] NSWCA 328

State of New South Wales v Lawrence [2019] NSWSC 946

The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40

Xie v R [2021] NSWCCA 1

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Wassim Fayad (Defendant)
Attorney General of New South Wales (Applicant on Terrorism Intelligence application)

Representation:

Counsel:
J Emmett SC with A Mykkeltvedt (Plaintiff)
S Prince SC with J Lucy (Defendant)
P Singleton (Applicant on Terrorism Intelligence application)

Solicitors:
Crown Solicitor’s Office (Plaintiff and Applicant on Terrorism Intelligence application)
Legal Aid NSW (Defendant)

File Number(s):

2020/288820

Judgment

Introduction

1. This case was not about religion in general or Islam in particular. This case was about Mr Wassim Fayad, the defendant, (also known as Fadi Alameddine and Abu Zakariyah) and whether the Court was satisfied that he, as an individual, posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision by way of an extended supervision order (ESO) made pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the THRO Act).

2. As at 7 October 2020, the defendant was serving a seven year sentence of imprisonment, having pleaded guilty to a charge of aggravated break and enter with intent to commit a serious indictable offence. That sentence was due to expire on 28 November 2020.

3. On 7 October 2020, the State of New South Wales, the plaintiff, filed a summons seeking an ESO in respect of the defendant. A continuing detention order was not sought. In the summons, the State also applied for interim relief by way of an interim supervision order (ISO) and psychiatric and psychological examinations of the defendant.

4. On 25 November 2020, Johnson J imposed an ISO and made orders for the examination of the defendant: State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [292]. As a result of those orders, the defendant was examined by Dr Seidler, a forensic psychologist, and Dr Ellis, a forensic psychiatrist.

5. The ISO was renewed a number of times so that it was eventually due to expire at the end of 27 February 2021. No further renewal of the ISO was possible after that date, by virtue of s 28(7) of the THRO Act.

6. The final hearing of the matter extended over three days from 24 to 26 February 2021. In that hearing, the defendant conceded that the threshold requirements for the making of an ESO set out in s 20(a), (b) and (c) of the THRO Act were satisfied. That concession was, in my view, properly made. Accordingly, the only issue at the final hearing was whether, as required by s 20(d), the Court was:

“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”.

7. On 27 February 2021, being so satisfied, I made the following orders:

“1. Pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of 2 years from the date of this order, or from when the defendant’s current supervision expires, whichever is the later (the ESO).

2.   Pursuant to s 29(1) of the Act, the defendant is to comply with the conditions set out in the schedule to this order for the duration of the ESO, subject to any variation of the conditions by the Court as a result of an application for variation made in accordance with order 3 of these orders.

3.   The defendant has leave to apply to vary the conditions referred to in the preceding order 2 by filing and serving a notice of motion specifying the variations sought on or before 12 March 2021.

4.   If a notice of motion is filed in accordance with preceding order 3:

a.   The defendant is to file and serve any evidence and submissions on which he relies in support of the notice of motion on or before 12 March 2021.

b.   The plaintiff is to file and serve any evidence and submissions on which it relies on or before 26 March 2021.

c.   The defendant is to file and serve any evidence and submissions in reply on or before 2 April 2021.

d.   The notice of motion is listed for hearing before Wright J on 6 April 2021.

5.   Access to the Court’s file in this proceeding, other than these orders, is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.”

8. The conditions referred to in order 2 are contained in the schedule attached to this judgment.

9. I now set out my reasons for making those orders in the paragraphs which follow.

Relevant statutory provisions and principles

10. The scheme established by the THRO Act for the making of extended supervision orders (ESOs) depends not only on that Act but also refers to certain provisions of the Criminal Code (Cth) (the Criminal Code). Accordingly, it will be necessary to refer in some detail to the applicable provisions of the THRO Act and to touch upon relevant offences and definitions in the Criminal Code.

11. The “primary object” of the THRO Act is, under s 3(1):

“to provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community”.

12. “Another object” of the Act is provided in s 3(2) and that is to “encourage these offenders to undertake rehabilitation”.

13. ESOs are dealt with in Pt 2, Divs 2.1 to 2.4, ss 19 to 26, of the THRO Act.

14. The Court’s power to make an ESO is governed by s 20 which provides:

“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.”

15. A “serious terrorism offence” is defined in s 4(1) of the THRO Act to mean:

“an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”.

16. Sections 21 and 25 of the THRO Act give further guidance as to how the Court is to go about its task under s 20. Section 21 establishes that, in order to determine that there is an unacceptable risk of the offender committing such a serious terrorism offence, the Court is not required to determine that such a risk is more likely than not.

17. Section 25(1) permits the Court to determine an application for an extended supervision order either:

1. by making an extended supervision order, or

2. by dismissing the application.

18. In determining the application, the Court is required by s 25(2) to treat the safety of the community as “the paramount consideration”. Section 25(3) also contains a list of mandatory considerations for the Court, in the following terms:

“(3) In determining whether or not to make an extended supervision order in respect of an eligible offender, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a) the reports received from the persons appointed to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(b) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist, registered medical practitioner or other relevant expert as to the likelihood of the offender committing a serious terrorism offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(c) the results of any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence,

(d) any report prepared by Corrective Services NSW or the NSW Police Force as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any report prepared by a prescribed terrorism intelligence authority relevant to whether the offender can reasonably and practicably be managed in the community,

(f) any treatment or rehabilitation programs and other programs or initiatives in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs or initiatives, and the level of the offender’s participation in any such programs or initiatives,

(g) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(h) the likelihood that the offender will comply with the obligations of an extended supervision order,

(i) without limiting paragraph (h), the level of the offender’s compliance with any obligations to which the offender is or has been subject while:

(i) on release on parole, or

(ii) subject to a control order, or

(iii) subject to an earlier extended supervision order or interim supervision order, or

(iv) subject to any other order of a court,

(j) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(k) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(l) 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,

(m) any other information that is available as to the likelihood that the offender will commit a serious terrorism offence.”

19. Finally, s 25(4) renders any intention of the offender to leave New South Wales (whether permanently or temporarily) an irrelevant consideration for the purposes of determining whether to make an ESO.

20. If an ESO is made, s 26 of the THRO Act deals with the term or duration of the order. Section 26(1) specifies that an ESO commences when the order is made, or when the eligible offender’s “current custody or supervision” expires, whichever is the later. “Current custody or supervision” is defined as meaning “the custody or supervision to which the offender is subject at the time of the application”, in s 19 of the THRO Act.

21. As to expiration and suspension of an ESO, s 26(6) provides:

“(6) An extended supervision order expires at the end of:

(a) such period (not exceeding 3 years from the day on which it commences) as is specified in the order, or

(b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.

(7) An eligible offender’s obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law.”

22. Section 29 provides for the imposition of conditions under an ESO. Section 29(1) contains a list of conditions with which a defendant may be required to comply under an ESO and s 29(1A) contains a list of conditions which must be included, unless the Court orders differently. Section 29(2) sets out definitions of some of the terms used. Section 29 is in the following terms:

“29 Conditions that may be imposed on extended or interim supervision order

(1) An extended supervision order or interim supervision order may direct an eligible offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender to do any one or more of the following:

(a) to permit any enforcement officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address,

(b) to permit any enforcement officer to access any of the following:

(i) a computer or related electronic equipment that is at the offender’s residential address or in the possession of the offender,

(ii) data held within, or accessible from, the computer or related electronic equipment (including data accessible by means of an electronic identity),

(c) to permit any enforcement officer to seize any computer or other object at the offender’s residential address or in the possession of the offender for the purpose of enabling it to be forensically examined,

(d) to use specified services or facilities,

(e) to make periodic reports to an enforcement officer,

(f) to notify an enforcement officer of any change in the offender’s address,

(g) to participate in intervention programs or initiatives,

(h) to wear electronic monitoring equipment,

(i) to reside at an address approved by an enforcement officer,

(j) not to reside in or resort to specified locations or classes of locations,

(k) not to associate or make contact with specified persons or classes of persons,

(l) not to engage in specified conduct or classes of conduct,

(m) not to engage in specified financial, property or business dealings (including not to enter into specified agreements or hold specified interests in connection with such dealings),

(n) not to possess or use specified objects or substances,

(o) not to engage in specified employment or classes of employment,

(p) not to change the offender’s name,

(q) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order,

(r) to comply with specified requirements in connection with the offender’s access to and use of the internet,

(s) to provide any enforcement officer with information about any one or more of the following:

(i) a carriage service used, or intended to be used, by the offender (including any telephone number used, or intended to be used, by the offender),

(ii) an internet service provider or carriage service provider used, or intended to be used, by the offender,

(iii) an internet connection used, or intended to be used, by the offender (including whether the connection is a wireless, broadband, Asymmetric Digital Subscriber Line (ADSL) or dial-up connection),

(iv) an electronic identity used, or intended to be used, by the offender,

(t) to provide any enforcement officer with requested information in relation to any employment or any financial affairs of the offender.

(1A) Unless the Supreme Court orders differently (and without limiting the conditions that the Court may impose under subsection (1)), an extended supervision order or interim supervision order must include conditions requiring the eligible offender:

(a) to submit to the supervision and guidance of any enforcement officer responsible for the supervision of the offender for the time being and obey all reasonable directions of an enforcement officer (including in respect of providing a schedule of movements), and

(b) to wear electronic monitoring equipment as directed and not tamper with, or remove, the equipment, and

(c) to live at an address approved by an enforcement officer and notify an enforcement officer of any intention to change the offender’s address or living arrangements, and

(d) not to leave New South Wales except with the approval of the Commissioner of Corrective Services, and

(e) to submit to the search of the offender’s person and residence and the search and seizure of the offender’s vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the offender’s control, and

(f) to comply with rules or by-laws (or both) of any approved accommodation for the offender, and

(g) not to use prohibited drugs, or obtain drugs unlawfully or abuse drugs lawfully obtained, and

(h) to submit to drug and alcohol testing, and

(i) not to possess or use any of the following:

(i) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

(ii) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

(iii) a spear gun,

(iv) an explosive substance intended, by the eligible offender, to be used in an explosive device,

(v) a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the eligible offender, to be used as a fuse or detonator for an explosive device (as the case may be), and

(j) to be available for interview at such times and places as an enforcement officer (or the officer’s nominee) may from time to time direct, and

(k) to undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an enforcement officer, and

(l) not to start on the offender’s own initiative any job, volunteer work or educational course without the approval of an enforcement officer, and

(m) to obey any reasonable direction by an enforcement officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information), and

(n) to permit an enforcement officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, and

(o) to notify an enforcement officer of any intention to change the offender’s employment if practicable before the change occurs or otherwise at his or her next interview with an enforcement officer, and

(p) not to associate (including using third parties) with any person or persons specified by an enforcement officer, whether face to face or by written correspondence or electronic means, and

(q) not to change the offender’s name or use any other name without notifying an enforcement officer, and

(r) not to frequent or visit any place or district specified by an enforcement officer.

(2) In this section:

carriage service, carriage service provider and internet service provider have the same meanings as in the Telecommunications Act 1997 of the Commonwealth.

electronic identity means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.”

23. Finally, it can be noted that, under s 31 of the THRO Act, the Court may vary or revoke an ESO at any time on the application of the State or the person to whom it applies.

24. In the present case, there was no dispute that the defendant was an “eligible offender” and, as noted above, it was conceded by the defendant that the requirements in s 20(a), (b) and (c) were made out in the present case. Thus, the focus of the final hearing was upon the requirements in s 20(d) of the THRO Act, namely, whether the Court was:

1. satisfied to a “high degree of probability”;

2. that the defendant posed an “unacceptable risk”;

3. of committing “a serious terrorism offence”.

“High degree of probability”

25. The requirement for the Court to be satisfied to a “high degree of probability” performs at least two functions. First, it confirms that the issue of whether the defendant poses an unacceptable risk is not to be resolved by mere speculation and, secondly, it effectively displaces the ordinary civil standard of proof, “on the balance of probabilities”, with a higher standard, “to a high degree of probability”: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [29]. The authorities that concern the same wording in other New South Wales high risk offender legislation establish that this higher standard is, however, lower than the criminal standard of proof of “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

26. The defendant submitted that this requirement for the Court to be satisfied to a high degree of probability required there to be “acceptable, cogent evidence” of the matters to which the Court must have regard and that such evidence should permit the Court to reach the required degree of satisfaction. The defendant relied on the comment of Payne JA in Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [131] that “[t]he requirement in section 13 of the Dangerous Prisoners (Sexual Offenders) Act for there to be “acceptable, cogent evidence” before the Court is materially indistinguishable from the requirement in the [Crimes (High Risk Offenders) Act] for the Supreme Court to be satisfied ‘to a high degree of probability’”. It was further submitted that particular pieces of evidence, for example intelligence reports and OIMS notes, did not meet the description “acceptable, cogent evidence” and thus the Court should not take that material into account in determining whether it was satisfied to a high degree of probability that the defendant posed a relevant risk.

27. This submission was not, and should not be, accepted. In Kamm at [131], Payne JA was considering whether certain features of the Crimes (High Risk Offenders) Act2006 (NSW) were sufficiently different from the Queensland high risk offender legislation considered by the High Court in Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 so that it could be concluded that the Crimes (High Risk Offenders) Act, unlike the legislation in Fardon, was constitutionally invalid because it impaired the institutional integrity of the Supreme Court of New South Wales so as to be incompatible with the Court’s position as a potential repository of federal judicial power. The legislation in Fardon provided that the satisfaction of the Supreme Court of Queensland “that the appellant [in that case] is a serious danger to the community could be attained (s 13(3)):

"only if it is satisfied –

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability;

that the evidence is of sufficient weight to justify the decision."

28. At [131] to [134], Payne JA said:

“131. The requirement in s 13 of the Dangerous Prisoners (Sexual Offenders) Act [the Queensland legislation referred to in Fardon] for there to be “acceptable, cogent evidence” before the Court is materially indistinguishable from the requirement in the High Risk Offenders Act for the Supreme Court to be satisfied “to a high degree of probability” that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision: s 5B(2).

132. It is within the competence of a State Parliament to design a scheme that reverses the onus of proof: Kuczborski v Queensland (2014) 254 CLR 51; [2014] HCA 46 at [240] per Crennan, Kiefel, Gageler and Keane JJ. Section 5B(3) does not reverse the onus of proof but provides that the Supreme Court is not required by s 5B(2) to determine that the “risk” of the person committing the offence is more likely than not when considering whether there is an “unacceptable risk of [the person] committing a serious offence”. It will be recalled that the Dangerous Prisoners (Sexual Offenders) Act requires a state of satisfaction that there is “a serious danger to the community in the absence of a division 3 order”. That Act was silent about the “risk” of the person committing an offence.

133. The High Risk Offenders Act is similarly materially indistinguishable from the Dangerous Prisoners (Sexual Offenders) Act in relation to the onus of proof. In the former case it is clear that the State bears the onus of proving that an offender poses “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”: ss 5H; 6; 9; 21; and see Donovan at [23]. In the latter case, the Attorney-General also bore an onus of proving the prisoner was a “serious danger” to the community: s 13.

134. So understood, the requirements of the Dangerous Prisoners (Sexual Offenders) Act considered in Fardon and the material provisions of the High Risk Offenders Act are not relevantly distinguishable. The identification of that standard of proof in s 5B(3) in relation to the subject matter of that sub-section, the risk of committing an offence, does not impermissibly intrude into the processes or decisions of the Supreme Court so as impair its institutional integrity or be incompatible with the Court’s position as a potential repository of federal judicial power.”

29. Payne JA was only stating that, for the purpose of considering the constitutional validity of the Crimes (High Risk Offenders) Act, the provisions in s 5B of that Act were “materially indistinguishable from” s 13 of the Queensland legislation held to be valid in Fardon. His Honour was not establishing a principle that the wording of s 5B was to be construed as incorporating the different wording and concepts found in s 13 of the Queensland legislation.

30. The relevant requirements of s 5B of the Crimes (High Risk Offenders) Act use substantially the same form of words as the requirement in s 20(d) of the THRO Act. Section 20(d) does not contain a requirement that the Court’s satisfaction must be based on “acceptable, cogent evidence”. Indeed, by operation of ss 25(3), 50, 58, 59 and 61 of the THRO Act, the Parliament has prescribed the types of evidence that will be admissible on an application under the THRO Act, subject to s 50(2) of that Act. The acceptability or cogency of that evidence was to be considered in light of the fact that the Court was not required to place any particular weight on any part of the material admissible under those provisions of the THRO Act and could take into account the fact that it had not been tested by cross-examination, or that it contained hearsay, irrelevant material or non-expert opinion evidence. In addition, the Court had power to limit its use by making an order under s 136 of the Evidence Act 1995 (NSW).

31. Accordingly, the weight to be given to the items of evidence in the present case was given serious consideration. That evidence was not, however, disregarded simply because it might not fall within the meaning of “acceptable, cogent evidence” found in the Queensland high risk offender legislation considered in Fardon.

“Unacceptable risk”

32. The expression “unacceptable risk” is not defined in the THRO Act. In light of the authorities concerning the same wording in other New South Wales high risk offender legislation, this phrase is to be given its everyday meaning in its context and having regard to the objects of the THRO Act (which have been set out above): Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. It can also be accepted that the test of whether a person poses such an unacceptable risk is an evaluative one that requires the exercise of discretionary judgment: Lynn at [82].

33. The evaluation of whether the risk is “unacceptable” must, by virtue of s 25(2), take into account the safety of the community as the paramount concern. This evaluation also depends on the mandatory considerations in s 25(3)(a) to (m), as well as any other relevant matters or circumstances. The exercise to be undertaken by the Court requires a focus not so much on guaranteeing the safety and protection of the community but on making the community secure from harm: Lynn at [61]. It also involves balancing the likelihood of the commission of the offence and the magnitude of the harm to the community if the risk does eventuate: Minister for Home Affairs v Benbrika [2021] HCA 4 at [192]. Thus, a low risk of great harm may be sufficient to establish an “unacceptable risk”, whereas a high risk of minimal harm may well be an acceptable risk, depending on the circumstances: Benbrika at [192].

34. Having regard to the terms of s 20(d) and the objects, scope and purpose of the THRO Act, the right of a person to his or her personal liberty after serving a term of imprisonment is not a relevant consideration in the evaluative task of assessing the relevant risk: Lynn at [44] and [55]-[56].

“A serious terrorism offence”

35. The risk that the Court is required to assess is the future risk of the defendant committing a “serious terrorism offence”.

36. In s 4(1) of the THRO Act, “serious terrorism offence” is defined as meaning:

“an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment”.

37. Offences in Part 5.3 of the Criminal Code which fall within the definition of “serious terrorism offence” in the THRO Act were usefully summarised by Johnson J in his Honour’s preliminary judgment in this matter, State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 at [35], as including:

“engaging in a terrorist act (s.101.1 Criminal Code (Cth), noting the extended definition of "terrorist act" in s.100.1); providing or receiving training connected with terrorist acts (s.101.2); possessing things connected with terrorist acts (s.101.4); collecting or making documents likely to facilitate terrorist acts (s.101.5); doing acts in preparation for, or planning, a terrorist act (s.101.6); directing the activities of a terrorist organisation (s.102.2); membership of a terrorist organisation (s.102.3); recruiting for or participating in the activities of a terrorist organisation (s.102.4); training involving a terrorist organisation (s.102.5); getting funds to, from or for a terrorist organisation (s.102.6); and providing support to a terrorist organisation (s.102.7)”.

38. “Terrorist act” is relevantly defined in s 101.1(1) of the Criminal Code 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”;

and subss (2) and (3) provide:

“(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.

39. In s 102.1(1) of the Criminal Code:

1. “recruit” is defined as including “induce, incite and encourage”;

2. “terrorist organisation” is defined as meaning:

“(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))”.

40. Islamic State and Jahbat Al Nusra, in various emanations, are organisations specified for purposes of par (b) of the definition of terrorist organisation in s 102.1(1): see for example Criminal Code (Terrorist Organisation—Islamic State) Regulations 2020 (Cth) and Criminal Code (Terrorist Organisation—Jabhat Fatah al-Sham) Regulations 2019 (Cth).

41. Section 11.2 of the Criminal Code extends the range of potential serious terrorism offences. That section provides:

“(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.

(2) For the person to be guilty:

(a) the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

(3) For the person to be guilty, the person must have intended that:

(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or

(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.

(3A) Subsection (3) has effect subject to subsection (6).

(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.

(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).

(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:

(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or

(b) is guilty of that offence because of the operation of subsection (1);

but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.”

42. From the terms of s 11.2, it follows that if, for example, a person counsels or procures the commission by another of an offence against Pt 5.3 of the Criminal Code that carries a maximum penalty of seven years or more, and the other requirements of s 11.2 of the Code are met, the person is taken to have committed “that offence”, which will be a “serious terrorism offence” within the meaning of the THRO Act. In other words, aiding, abetting, counselling or procuring a serious terrorism offence is also a serious terrorism offence.

The evidence

The State’s evidence

43. The State’s evidence in this matter fell into the following categories:

1. intelligence reports contained in the confidential exhibits (Ex MSW1, Ex MSW2 and Ex MSW3) which were the subject of a terrorism intelligence application under Div 5.3 of the THRO Act;

2. other documents provided in response to a requirement under s 58 of the THRO Act or a request under s 59 including:

1. NSW Corrective Services Probation and Parole Service Offender visits 22 October 2020;

2. NSW Corrective Services OIMS Personal Details Report: Ali Al-Talebi;

3. NSW Corrective Services OIMS Case Note Reports dating from 22 April 2013 to 23 August 2020;   

4. NSW Corrective Services OIMS Case Note Reports dating from 22 October 2020 to 7 December 2020; and

5. an inmate misconduct report dated 30 October 2020;

3. documents provided under ss 58 and 59 including reports relating to matters to which the Court must have regard under s 25(3) of the THRO Act such as:

1. Expert Report of Dr Katie Seidler, clinical and forensic psychologist, dated 29 January 2021;

2. Supplementary Expert Report of Dr Katie Seidler, dated 11 February 2021;

3. Expert Report of Dr Andrew Ellis, forensic psychiatrist, dated 27 January 2021;

4. Supplementary Expert Report of Dr Andrew Ellis, dated 19 February 2021;

5. Expert Report of Ms Chelsey Dewson, forensic psychologist, dated 28 September 2020;

6. Expert Report of Prof Greg Barton, Deakin University Professor and Research Chair, dated 19 January 2021; and

7. Expert Report of Dr Mariam Farida, UNSW Middle East Expert, dated 22 September 2020;

4. affidavit evidence:

1. Affidavit of Senior Constable Danny El Helou sworn 14 September 2020;

2. Affidavit of Detective Sergeant Matthew Schenke sworn 14 October 2020;

3. Affidavit of Amay Tembe affirmed 8 October 2020, accompanied by Annexures B and C being the Certificates of Conviction of Messrs Ali Al-Talebi and Hamdi Alqudsi;

4. Two affidavits of Kate James sworn 27 October 2020 and 21 January 2021; and

5. Affidavit of Gabrielle McPherson affirmed 22 January 2021.

5. Video and audio recordings on USBs:

1. one audio conversation of a 6 minute and 46 second telephone call from Tuki Lawrence to Mariam Tangaroa;

2. two videos relating to the 2012 protest in the Sydney CBD:

1. A 15 second Channel 9 video clip showing Islamic protestors and a large group of police; and

2. An 8 minute and 38 second Channel 10 video clip showing Islamic protestors speaking into a megaphone in and around the Hyde Park area; and

3. one video of 2 hours, 45 minutes and 1 second of a visit at Goulburn Gaol involving the defendant and four other men (Messrs Khalid, Al-Talebi, Salihy and Osman) on 2 November 2014.

6. Other documents provided under ss 58 and 59 or material relating to matters to which the Court must have regard under s 25(3) of the THRO Act including:

1. A NSW Corrective Services log of Offender Visits dated 22 October 2020;

2. An OIMS Personal Details Report for Ali Al-Talebi;

3. A NSW Corrective Services Visitor Details Report dated 21 October 2020;

4. NSW Corrective Services document containing classification history details and punishment details for the defendant dated 16 July 2020;

5. A Telstra phone bill for the defendant issued on 16 November 2013;

6. A statement of agreed facts from the NSW District Court proceedings for the defendant’s Index Offences;

7. The portion of the remarks on sentence of Woodburne DCJ containing the imposition of the sentence of seven years’ imprisonment upon the defendant;

8. Extracts from Transcript of ERISP given by the defendant on 19 July 2011;

9. Police photographs of Mr Cristen Martinez’s back, side and hand injuries following the 2011 “whipping” offence;

10. Extracts from the Examination in Chief of Mr Martinez in Burwood Local Court;

11. Decisions of R v Zakaryah Raad, Fadi Alemaddin (aka Wasim Fayad), Tolga Cifci, Gengiz Coskun before Maloney LCM in the Burwood Local Court;

12. Extracts from the Witness Statement of Jaemi Templeton on 3 December 2013 in the matter of NSW Police v Fayad;

13. Judgment of R v Fred Toufic Alemaddin aka Wassim Fayed before Bennett DCJ in the District Court on appeal from the Local Court;

14. An information report summary titled “Suspected Sourcing and Possession of Firearms” involving four persons of interest suspected of being involved in the supply of firearms: Wassim Fayad; Rabbie El Achwah; Dennis Tervoski; and, Mirwais Danishyar;

15. A NSW Police Intelligence Information Report summary titled “Information re Sourcing of Firearms” citing the defendant as a person of interest;

16. A NSW Police Intelligence Information Report summary titled “Possible Firearms Possession and Sale” involving the defendant; Rabbie El Achwah; Dennis Tervoski; and, Mirwais Danishyar;

17. Property seizure record contained in the statement of Senior Constable Mehmet Sagkol of the defendant’s premises;

18. Statement of Acting Sergeant James Short dated 19 December 2013 regarding the details of when he attended at the defendant’s premises;

19. Statement of Plain Clothes Senior Constable Joshua Patch dated 12 March 2020;

20. An extract from the defendant’s Offender Intake Data Form containing material regarding his family background and domestic circumstances;

21. Letter to R McNair, Manager of Security at Goulburn Correctional Centre, dated 24 September 2014, concerning the defendant’s activities recruiting and/or preaching his beliefs to other inmates;

22. Letter from Mr Michael Weston, dated 24 September 2014, headed “Incident Report” involving the defendant placing pressure on certain inmates in the yard;

23. Review of Segregated Custody initial report prepared by Mr Larry Bolger, General Manager of Goulburn Correctional Centre, recommending that the defendant’s segregated custody direction, which had initially commenced on 24 September 2014, continue, and that the inmate continued to be detained in isolation from all other inmates;

24. An Incident Report from Mr A.R Dennington, a Senior Correctional Officer, dated 20 February 2015;

25. Letter from Mr Larry Bolger, General Manager Goulburn Correctional Cluster, regarding an incident in 13 Yard, in which the defendant was identified, inter alia, as a key person in the incident;

26. Inmate misconduct report from Mr Timothy Price, of NSW Corrective Services, of the defendant’s involvement in an incident on 5 January 2018;

27. Confidential PRISM Assessment Report for the defendant dated 12 November 2018;

28. Extracts from Offender Visits for the defendant, from 24 February 2014 to 14 February 2015;

29. Extract from a transcript of a telephone call between the defendant and Mr Zackaryah Alameddine on 17 May 2019;

30. Extract from a transcript of a telephone call between the defendant and Maysa Alameddine on 16 January 2020;

31. Extracts from a transcript of a telephone call between the defendant and Zakariya Alameddine on 24 February 2020;

32. Extract from a transcript of a telephone call between the defendant and Saarah Alameddine on 22 March 2020;

33. Extracts from a NSW Corrective Services Intelligence Report, dated 2 January 2014, regarding the defendant’s observed conduct in one of the prison yards, speaking to inmates in a group, only for the group to disperse once Corrective Services personnel approached;

34. NSW Corrective Services Intelligence Report, dated 4 August 2014, regarding observations by Corrective Services personnel of the defendant attempting to convert both inmates and identified staff to the Islamic faith;

35. NSW Corrective Services Intelligence Report, dated 12 September 2014, regarding the defendant’s conversion of certain inmates to the Islamic faith;

36. NSW Corrective Services Intelligence Report dated 9 December 2014 regarding a telephone conversation the defendant had with Mr Mohamed Osman on 9 December 2014;

37. NSW Corrective Services Intelligence Report, dated 20 February 2015, regarding an incident in one of the prison yards involving chanting and yelling, after which the defendant was identified as a key person and placed in segregated custody;

38. NSW Corrective Services Intelligence Report, dated 22 November 2015, regarding the defendant’s attempts to convert certain inmates to the Islamic faith and offer them Islamic teachings;

39. Extracts from NSW Corrective Services Intelligence Report, dated 29 March 2016, one of which contained a handwritten note providing advice and directions on elements of the Islamic faith;

40. Extracts from NSW Corrective Services Intelligence Report, dated 31 May 2018, regarding the offering of religious books to the defendant’s son, which were being stored at Mr Al Safi’s residence;

41. NSW Corrective Services Intelligence Report, dated 20 November 2019, regarding an incident involving religious books in the facility being thrown out and subsequent “protests” by inmates;

42. Extracts from NSW Corrective Services Intelligence Report dated 10 December 2019 regarding threats made by various inmates, including the defendant, intended for the A/Governor and A/Manager of Security at HRMCC;

43. Letter from Milad Al-Ahmadzai to Bassam Hamzy, dated 22 September 2015, informing him that since the defendant had been in custody, between 50-70 people had accepted Islam by his efforts;

44. Letter from Mr Bourhan Hraichie to the defendant dated 5 June 2016;

45. Letter from the defendant to Bourhan Hraichie dated 17 June 2016;

46. Letter from Bourhan Hraichie to the defendant dated 21 June 2016;

47. Letter from the defendant to Maywand Osman dated 18 November 2016;

48. Letter from Bourhan Hraichie to the defendant dated 10 December 2016;

49. Letter from the defendant to Bourhan Hraichie dated 24 December 2016;

50. Letter from the defendant to Bourhan Hraichie dated 28 December 2016;

51. Extracts of a letter from the defendant to Manager of Security containing his views as to Parole and PRISM;

52. NSW Corrective Services Communication Review regarding a telephone call from the defendant to Zaraiya Alameddine on 17 May 2019;

53. Extracts from a pre-release report prepared by Mr Brett Bannerman, Acting Manager of Goulburn Community Corrections Office, dated 23 July 2018;

54. Extracts from JCTT Covering Summary Report regarding the defendant’s identification as a primary person of interest in several operations investigating foreign incursion offences and terrorist offences;

55. Extracts from the determination of the State Parole Authority, dated 11 December 2018, refusing the defendant parole;

56. Extracts from the pre-release report prepared by Mr J Buck, dated 30 September 2019, including factors related to the defendant’s offending and his conduct in custody;

57. State Parole Authority response to memorandum dated 29 June 2020;

58. Judgment of R v Alqudisi [2016] NSWSC 1227;

59. JCTT Operational Threat Assessment for the defendant dated 22 August 2018;

60. JCTT Intelligence Report, dated 23 August 2018, recommending that the defendant be denied Parole owing to the unacceptable risk he poses to the community;

61. Extracts from an Intelligence Report, dated September 2014, regarding the defendant ideological stance on Shia Muslims;

62. Extracts from Intelligence Report, dated August 2013;

63. Extracts from Intelligence Report, dated January 2014, regarding information about the conversion of certain inmates to the Islamic faith;

64. Extract from an Intelligence Report dated August 2015;

65. Sydney District Court Conviction Certificate of Ahmad Naizmand dated 13 May 2020;

66. Federal Court Conviction Certificate of Ahmad Naizmand dated 25 June 2020;

67. Federal Circuit Court Conviction Certificate of Ahmad Naizmand dated 25 June 2020;

68. Federal Court Conviction Certificate of Maywand Osman dated 5 October 2020;

69. Supreme Court of NSW Certificate of Conviction of Bourhan Hraichie, dated 7 October 2020;

70. Supreme Court of NSW Certificate of Conviction of Milad Atai, dated 7 October 2020;

71. Supreme Court of NSW Certificate of Conviction of Raban Alou, dated 8 October 2020;

72. Judgment of DPP v Raad, Cifci, Cozkun and Fayad proceeding at Central Local Court before Maloney LCM;   

73. Judgment of R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365;

74. Judgment of R v Biber [2018] NSWSC 535;

75. Criminal History – Bail Report of Hamdi Alqudsi, dated 8 October 2020;

76. Criminal History – Bail Report of Ali Al-Talebi, dated 8 October 2020;

77. Criminal History – Bail Report of Bourhan Hraichie, dated 8 October 2020;

78. Extract from ERISP Transcript of Interview with Hourhan Hraichie, dated 7 April 2016, containing information about the killing of Muslims;

79. Extract from ERISP Transcript of Interview with Bourhan Hraichie, dated 13 September 2018, containing information about the “whipping” offence as well as Mr Hraichie’s “Abu” name of Abu Hunayn;

80. Extracts from Transcript of Surveillance Listening Device installed in cell of Tukiterangi Lawrence dated 6-7 May 2019;

81. Extract from Investigator’s Note: Analysis of Mobile Phone seized from Tukiterangi Lawrence, dated 23 April 2019, containing messages regarding arrangements with another person for the selling of quantities of methylamphetamine and also the possession of firearms;

82. Extracts from Conviction, Sentences and Appeals Report, dated 21 December 2020, for the defendant;

83. Extract from OIMS Case Notes, dated 22-23 October 2020;

84. Extract from Transcript of Audio of a telephone conversation made by Tukiterangi Lawrence to Mariam Tangaroa dated 14 November 2020; and

85. Supreme Court of NSW Certificate of Court Result for Tukiterangi Lawrence;

86. Summary titled “Plaintiff’s Factual Allegations Re Associates”;

87. Supreme Court of NSW Certificate of Court Result for Mr Mayward Osman, dated 25 February 2021; and

88. Plaintiff submissions and extracts of telephone intercepts between the defendant and Mr Alqudsi between 13 June 2013 and 7 November 2013.

44. None of the State’s witnesses who were cross examined was effectively challenged as to the truth or reliability of their evidence. Where a mistake, of no substantial significance, had been made it was readily conceded. Their evidence was properly qualified where appropriate. Overall, I formed the view that the evidence of these witnesses should generally be accepted. Where the State relied on documentary evidence whose authors could not be cross examined, my general conclusion was that it was admissible by virtue of ss 61 and 25(3) of the THRO Act but the weight that ought to be given to the material varied markedly depending on the nature of the information and the circumstances in which the documentation was apparently created.

45. It is appropriate to set out briefly here my reasons in relation to the evidentiary objections of general application that arose in these proceedings. In this regard, it can be noted that Johnson J in State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 dealt with objections to the admission of certain judgments under s 91 of the Evidence Act 1995 at [63] to [80]. I gratefully adopted his Honour’s conclusions and reasoning, so far as they continued to be applicable in the final hearing before me, and it is not necessary to repeat here Johnson J’s comments. I specifically note, however, that I agreed that limited weight should be given to the part of Bellew J’s judgment in R v Sulayman Khalid; R v Jibryl Almaouie; R v IM; R v Mohamed Rashad Al Maouie; R v Farhad Said [2017] NSWSC 1365 identified at [76] and [79] of Johnson J’s judgment and I adopted a similar approach when considering challenged portions of other judgments in matters in which the defendant was not a party and for which there was no independent evidentiary support.

46. Other particular evidentiary rulings were made during the hearing and are not dealt with in these reasons beyond what is set out in the paragraphs which follow.

Terrorism intelligence

47. The terrorism intelligence in the confidential exhibits was the subject of a terrorism intelligence application determined at the commencement of the hearing on 24 February 2021. The orders made on that occasion were as follows:

“The Court orders until further order that in respect of the following documents, and the contents of those documents:

(a) AFP Information Report 1053331;

(b) NSW Police Force Information Report I 578123377;

(c) CSNSW Information Report IR-15-0653

(d) Confidential Affidavit of Mark Steven Walton of 22 February 2021.

Access is granted only on the basis that:

1. The documents at (a)-(d) above, and the contents of those documents, will not be disclosed to any person except for the following:

i. The Supreme Court and staff;

ii: Those representing the plaintiff in these proceedings;

iii. Those representing the defendant in these proceedings;

iv. The Commissioner of Corrective Services, the Commissioner of NSW Police, the Commissioner of the AFP or personnel employed by these agencies performing duties relevant to these proceedings and the legal representatives instructed by these agencies in these proceedings;

v. Any expert engaged for the purpose of these proceedings.

2. For the avoidance of doubt, it is a term of this order that the documents at (a)-(d) above, and the contents of those documents, will not be disclosed to the defendant and the defendant is not permitted any form of access to those documents or knowledge of the contents of those documents.

3. Any submissions or evidence about, based on or referring to the documents at (a)-(d) above, or their contents, is to be made or given in closed court.”

and further it was ordered that:

1. There shall be no disclosure of submissions made or evidence adduced during the closed court hearing in relation to the terrorism intelligence application until further order of the Court and this order applies throughout the Commonwealth of Australia.”

48. There was no dispute that the terrorism intelligence application was made by the Attorney General under s 59A of the THRO Act which relevantly provides:

“The Attorney General … may:

(a) make an application (a terrorism intelligence application) to the Supreme Court in any proceedings before the Court under this Act (the substantive proceedings) for particular information to be dealt with as terrorism intelligence in those proceedings, and

(b) request that the Supreme Court take steps under section 59C to maintain the confidentiality of the information while the Court is considering whether to grant the application.

(2) The Supreme Court must grant a terrorism intelligence application if the Court is satisfied that:

(a) the information to which the application relates was provided to the Attorney General under Division 5.2, and

(b) the information is terrorism intelligence.”

49. The nature of such an application and the principles to be applied were helpfully set out in Johnson J’s judgment in State of New South Wales v Lawrence [2019] NSWSC 946. I gratefully adopt, without repeating here, his Honour’s analysis and reasoning generally except for one matter that I address below.

50. Given the nature of the information and the circumstances of its production to the Attorney General, it was accepted that the information to which the application related was provided to the Attorney General under Div 5.2 of the THRO Act. Accordingly, if the Court was satisfied that the information was “terrorism intelligence”, it was required by s 59A(2) to grant the application.

51. “Terrorism intelligence” is defined in s 4(1) to mean:

“information relating to actual or suspected terrorism activity (whether in the State or elsewhere) the disclosure of which could reasonably be expected:

(a) to adversely affect the capacity of persons or bodies involved in the prevention of terrorist acts from preventing such acts or the capacity of intelligence agencies (for example, the Australian Security Intelligence Organisation) to carry out their functions, or

(b) to prejudice criminal investigations or investigations by intelligence agencies, or

(c) to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or the functions of intelligence agencies, or

(d) to endanger a person’s life or physical safety.”

52. It is not appropriate in these reasons to identify in specific terms the material which was the subject of the application in the present case. It is sufficient to note that they were intelligence reports compiled by officers of the Australian Federal Police, the New South Wales Police and New South Wales Corrective Services responsible for gathering and analysing intelligence including intelligence in relation to the commission and prevention of terrorist acts which contravene the criminal law.

16.  The defendant must not sign any lease, mortgage or hire agreement (e.g. storage facilities) without prior approval of an Enforcement Officer.

PART F: PLACE & TRAVEL RESTRICTIONS

17.  The defendant must not frequent or visit any place or district specified by an Enforcement Officer.

18.  The defendant must not leave New South Wales except with the approval of the Commissioner of Corrective Services.

19.  The defendant must not be in possession of any passports and must not attempt to apply for any passports.

20.  In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to an Enforcement Officer as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed.

PART G: SEARCH & SEIZURE

21.  The defendant must submit to the search by an Enforcement Officer of the defendant's person and residence and the search and seizure of the defendant's vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under the defendant's control.

22.  The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to the conditions of this order.

PART I: WEAPONS

1. The defendant must not possess or use any of the following:

   i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

   ii.    a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

   iii. a spear gun,

   iv.    an explosive substance intended, by the defendant, to be used in an explosive device,

   v.    a fuse capable of use with an explosive or a detonator, or a detonator, that is intended, by the defendant, to be used as a fuse or detonator for an explosive device (as the case may be).

2. The defendant must not possess or use any of the following, without an Enforcement
   Officer's prior approval:

   a.   any article or device, not being such a firearm, that is designed or
   intended as a defence or anti-personnel spray and that is capable of
   discharging by any means:

   i. any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or

   ii. any substance capable of causing bodily harm.

   b.   a knife, machete, sword or any other device that consists of a single-
   edged or multi-edged blade or spike that is designed or adapted to inflict
   violence, whether actual or threatened;

   c.   any other implement made or adapted for use for causing injury to a
   person;

   d.   anything intended, by the person having custody of the thing, to be used
   to injure or menace a person or damage property; or

   e.   a laser pointer; or

   f.   A digital blueprint for the manufacture of a firearm or a prohibited weapon
   on a 3D printer or on an electronic milling machine.

PART J: PSYCHOLOGICAL/PSYCHIATRIC ASSESSMENT, COUNSELLING & MEDICAL TREATMENT

25.  The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by an Enforcement Officer.

26.  The defendant must notify an Enforcement Officer of the identity and address of any healthcare practitioner that he consults.

27.  The defendant must attend, upon the direction of an Enforcement Officer, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan.

28.  The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

29.  The defendant must notify an Enforcement Officer immediately if he ceases to take any medication referred to in the above condition.

30.  The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with an Enforcement Officer.

PART K: EMPLOYMENT, VOLUNTEERING & EDUCATION

31.  The defendant must notify an Enforcement Officer of any intention to change the defendant's employment if practicable before the change occurs or otherwise at his next interview with an Enforcement Officer.

32.  The defendant must not start on the defendant's own initiative any job, volunteer work or educational course without the approval of an Enforcement Officer.

PART L: COMMUNICATION, INTERNET USE & ELECTRONIC DEVICES

33.  The defendant must obey any reasonable direction by an Enforcement Officer about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to internet and restrictions on deleting information).

34.  The defendant must not use any of the following items unless disclosed and approved for use by an Enforcement Officer:

a.   Usernames other than "Wassim Fayad"

b.   Internet account (including email addresses, internet service provider
accounts, social media accounts, online communities)

c.   Devices that have the ability to access the internet

d.   Passwords (including encryption codes)

e.   Applications (including instant messaging services)

1. The defendant must advise an Enforcement Officer of any change to any of the items
   listed above immediately.

36.  The defendant must not delete, attempt to delete or clear data held on any of the items listed above without the prior consent of an Enforcement Officer.

37.  The defendant must consent to an Enforcement Officer (or any other person requested by an Enforcement Officer) to remotely inspect any internet account used by the defendant in monitoring compliance with this Order.

38.  The defendant must provide the details of telephone numbers, service provider account numbers, email addresses and usernames, as well as any relevant passwords (including encryption codes) used by the defendant, and the nature and details of any internet connection used by the defendant, as directed.

39.  The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with an Enforcement Officer.

PART M: ASSOCIATIONS

40.  The defendant must not associate (including using third parties) with any person or persons specified by an Enforcement Officer, whether face to face or by written correspondence or electronic means.

41.  The defendant must inform an Enforcement Officer of the identity of any person with whom he does, or is likely to, regularly associate.

42.  If the defendant starts an intimate relationship, he has to tell an Enforcement Officer.

43.  The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with other persons or with organisations advocating support for engaging in any terrorist acts.

44.  The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with any person held in custody or with any person he is aware is subject to a control order, on parole, or otherwise subject to a supervision order without prior approval of an Enforcement Officer.

45.  The defendant must obtain written permission from an Enforcement Officer prior to joining or affiliating with any club or organisation.

PART N: IDENTITY & APPEARANCE

46.  The defendant must not change his name or use any other name without notifying an Enforcement Officer.

47.  The defendant must not obtain or change any form of identification without prior approval from an Enforcement Officer.

48.  The defendant must let an Enforcement Officer photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

49.  The defendant must not significantly change his appearance without the prior approval of an Enforcement Officer.

PART O: EXTREMISM

50.  The defendant must not engage in any act or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.

51.  The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

(a)  extremist material; or

(b)  other material as directed by an Enforcement Officer for reasons related to concerns regarding violence or for reasons related to his risk of committing a serious terrorism offence.

PART P: DEFINITIONS

In these conditions:

"CSNSW" means Corrective Services NSW.

"Defendant" means Wassim Fayad, also known as Fadi Alameddine, Fadi Allemaddine, Fred Toufic Allemaddine, Fadih Allemaddine, Abu Zakariyah and Abdul Najame, the defendant in these proceedings and the subject of the order.

"Digital Blueprint" has the same meaning as in the Firearms Act 1996 (NSW) and the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

''Enforcement Officer" means a Corrective Services Officer or Police Officer.

Extremist material" means:

1. any material that a reasonable person would understand to be:

   a.   directly or indirectly encouraging, glorifying, promoting or condoning hate
   speech, terrorist acts or violent extremism; or

   b.   seeking support for, or justifying, the carrying out of hate speech, terrorist
   acts or violent extremism; or

2. material that a reasonable person would understand or suspect to be produced or
   distributed by a terrorist organisation.

Examples of ‘extremist material' include:

1.  articles, images, speeches or videos that promote hate speech or violent extremism;

2.  statements or posts made on social media, chat rooms or blogs that encourage hate speech or violent extremism;

3.  content encouraging people to commit acts of terrorism;

4.  websites created or hosted by terrorist organisations;

5.  terrorist training materials;

6.  suspicious content regarding use or sale of chemicals online; and

7.  videos or images of terrorist attacks or acts of violent extremism;

"Material" includes:

1.  any written or printed material;

2.  any picture, painting or drawing;

3.  any carving, sculpture, statue or figure;

4.  any photograph, film, video recording or other object or thing from which an image may be reproduced;

5.  any computer data or the computer record or system containing the data; and

6.  any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

"NSWPF" means NSW Police Force.

"Search" includes:

1.  A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

2.  A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

"Terrorist act" has the same meaning as in Part 5.3 of the Criminal Code Act 1995 (Cth) and means an action or threat of action where:

1. The action:

   a.   causes serious harm that is physical harm to a person;

   b.   causes serious damage to property;

   c.   causes a person's death;

   d.   endangers a person's life, other than the life of the person taking the
   action;

   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;

   ii.   a telecommunications system;

   iii.   a financial system;

   iv.   a system used for the delivery of essential government services;

   v.   a system used for, or by, an essential public utility; and

   vi.   a system used for, or by, a transport system; and

2.  the action is done or the threat is made with the intention of advancing a political, religious or ideological cause;

3.  the action is done or the threat is made with the intention of:

a. 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

b. intimidating the public or a section of the public; and

4. the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person's death, endanger the life of a person, or create a serious risk to the health and safety of the public.

"Terrorist organisation" has the same meaning as it has in Division 102 of Part 5.3 of the Criminal Code Act 1995 (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State / ISIS and Jabhat al Nusra.

Amendments

12 April 2021 - Paragraph reference removed from cover sheet.

07 May 2021 - Complete paragraph numbers inserted for conditions.

Decision last updated: 07 May 2021