State of New South Wales v Hardy (Final)

Case •

[2021] NSWSC 900

•

26 July 2021

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: State of New South Wales v Hardy (Final) [2021] NSWSC 900
Hearing dates: 8 July 2021, 9 July 2021, 12 July 2021
Date of orders: 26 July 2021
Decision date: 26 July 2021
Jurisdiction:Common Law
Before: Johnson J
Decision:

The Court makes the following orders:

(a) an order pursuant to ss. 20, 25(1) and 26 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) that the Defendant be subject to an extended supervision order for a period of eighteen months from 28 July 2021 to expire on 27 January 2023; and

(b) an order pursuant to s.29 THRO Act directing the Defendant, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to this judgment.

Catchwords:

HIGH RISK TERRORISM OFFENDER – application for ESO – earlier ESO ordered in 2019 – further application – Defendant committed offences in 2017 under s.31 Crimes Act 1900, ss.36 and 51F(1) Firearms Act 1996 and s.36 Weapons Prohibition Act 1998 – Sovereign Citizens Movement – construction and application of s.10(1)(c)(i) and s.20(c)(iii) Terrorism (High Risk Offenders) Act 2017 – “convicted NSW terrorism activity offender” – capacity to re-litigate 2019 finding under s.20(c)(iii) – held s.20(c)(iii) element established – risk assessment under s.20(d) and s.25 – held s.20(d) element established – whether ESO should be declined on discretionary grounds – appropriate to order ESO – consideration of duration and conditions of ESO – ESO made for 18 months subject to conditions

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes Act 1900 (NSW)

Criminal Code (Cth)

Evidence Act 1995 (NSW)

Firearms Act 1996 (NSW)

Mental Health Act 2007 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Alvares v R; Farache v R (2011) 209 A Crim R 297; [2011] NSWCCA 33

Arnold v National Westminster Bank plc [1991] 2 AC 93

Australian Securities and Investments Commissioner (ASIC) v Southcorp Ltd (2003) 46 ACSR 438; [2003] FCA 804

Blair & Perpetual Trustee Co Ltd v Curran (1939) 62 CLR 464; [1939] HCA 23

Cassegrain v Gerard Cassegrain & Co Pty Ltd (2013) 305 ALR 648; [2013] NSWCA 454

Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322

Ekes v Commonwealth Bank of Australia (2013) 313 ALR 665; [2014] NSWCA 336

Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International (2021) 389 ALR 612; [2021] FCAFC 77

Johnston v R [2017] NSWCCA 53

Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317

Lawrence v State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248

Lodhi v R (2006) 199 FLR 303; [2006] NSWCCA 121

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

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41

Minister for Home Affairs v Benbrika (2021) 95 ALJR 166; [2021] HCA 4

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385

Mun v R [2015] NSWCCA 234

R v Kemball [2020] NSWSC 1559

Secretary, Department of Justice and Regulation v LLF (A Pseudonym) [2018] VSCA 155

State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876

State of New South Wales v Dickson (Final) [2020] NSWSC 100

State of New South Wales v Elmir (Final) [2019] NSWSC 1867

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

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

State of New South Wales v Hardy [2021] NSWSC 323

State of New South Wales v Manners [2008] NSWSC 1242

State of New South Wales v Naaman (No. 2) (2018) 365 ALR 179; [2018] NSWCA 328

State of NSW v Mathers [2019] NSWSC 7

State of NSW v Mathers (No. 2) [2019] NSWSC 473

Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Wong v Director of Public Prosecutions (DPP) (2005) 155 A Crim R 37; [2005] NSWSC 129

Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Texts Cited:

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Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Christopher Bruce Hardy (Defendant)
Representation:

Counsel:
James Emmett SC; Anders Mykkeltvedt (Plaintiff)
Chris O’Donnell SC; Dev Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2021/65800
Publication restriction: ---

Judgment

  1. JOHNSON J: By Further Amended Summons dated 1 July 2021, the Plaintiff, State of New South Wales, seeks final orders under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) concerning the Defendant, Christopher Bruce Hardy.

  2. The Defendant was born in October 1972 and is now 48 years old. Until events which occurred in 2017, he had no prior criminal history. Up until 2017, the Defendant had worked as a jeweller for a number of years. Prior to 2017, the Defendant had no history of support for any extremist ideology. As will be seen, the events of 2017 brought the Defendant before the criminal courts and then, in 2019, before this Court on an application under the THRO Act.

  3. This is an unusual case. The Defendant is an intelligent man who has demonstrated disturbing behaviour in the past supportive of extremist ideology. This behaviour is said to be associated with mental health issues. The question for the Court in the present proceedings is whether the Defendant should once again be dealt with under the THRO Act, this being a matter of significant controversy between the parties.

Earlier Proceedings under the THRO Act

  1. On 1 April 2021, following a preliminary hearing, Harrison J made an order for examination of the Defendant by a qualified psychiatrist and a registered psychologist together with a direction that the Defendant comply with an interim supervision order (“ISO”) subject to specified conditions: State of New South Wales v Hardy [2021] NSWSC 323.

  2. The ISO has been continued on a number of occasions since that date and the current ISO will expire on 28 July 2021.

  3. An extended supervision order (“ESO”) under the THRO Act has been ordered on a prior occasion with respect to the Defendant. On 29 April 2019, Button J directed that the Defendant be subject to an ESO for a period of two years: State of NSW v Mathers (No. 2) [2019] NSWSC 473. The name “John Mathers” was utilised as a pseudonym by Button J for the purpose of that hearing because of then pending criminal proceedings against the Defendant: State of NSW v Mathers (No. 2) at [112]-[114].

  4. Those criminal proceedings have now concluded and will be referred to later in the judgment (at [97]-[98] and [102]-[103]). Accordingly, there is no need for a pseudonym to be utilised with respect to the Defendant’s name in the present judgment. Nor is there any difficulty with reference back to the 2019 judgments of Button J where a pseudonym was used. In fact, reference to those judgments is essential to assist an understanding of the further application brought by the Plaintiff for an ESO with respect to the Defendant.

  5. Accordingly, to the extent that it is necessary, I direct that the non-publication order made by Button J in 2019 under the Court Suppression and Non-Publication Orders Act 2010 (NSW) be lifted to allow identification of the Defendant as being the subject of the 2019 application under the THRO Act.

The Final Hearing

  1. The hearing of the Further Amended Summons took place by audio-visual link on 8, 9 and 12 July 2021. Mr James Emmett SC and Mr Anders Mykkeltvedt of counsel appeared for the Plaintiff. Mr Chris O’Donnell SC and Mr Dev Bhutani of counsel appeared for the Defendant.

  2. A substantial volume of documentary material was tendered on behalf of the Plaintiff and the Defendant. For convenience, two folders of material, including affidavits and reports relied upon by the Plaintiff or the Defendant, were admitted in a single exhibit (Exhibit A).

  3. In addition to the material in Exhibit A, the Plaintiff tendered two further volumes which contained extensive material with respect to the Defendant, including material which was before Button J for the purpose of the 2019 THRO Act proceedings (Exhibit B).

  4. Objection was taken on behalf of the Defendant to the tender of a risk assessment report dated 8 February 2021 and a supplementary risk assessment report dated 24 May 2021 prepared by Ahu Kocak, forensic psychologist. Ms Kocak is a Senior Specialist Psychologist, Countering Violent Extremism Programs with Corrective Services NSW. An affidavit of Danielle Matsuo affirmed 7 July 2021 stated that Ms Kocak was absent on medical leave which extended to 16 July 2021. Objection was taken to the reports of Ms Kocak upon the basis that she could not be cross-examined on her reports so that they ought be excluded under s.135 Evidence Act 1995 (NSW). I ruled on 8 July 2021 (T3-4) that the reports should be admitted as evidence at the final hearing, with the weight to be given to them to be assessed in the context of all evidence before the Court at the hearing and in light of submissions from the parties. In determining to admit the reports, I observed, amongst other things, that the risk assessment reports fell within s.25(3)(b) and/or (c) THRO Act so that the Court should have regard to them in fulfilling its statutory function.

  5. During the course of the hearing, a number of additional documents were tendered as evidence in the proceedings (Exhibits C and D; Exhibits 1 and 2).

  6. Following the orders made by Harrison J at the preliminary hearing on 1 April 2021, the Defendant was examined by Dr Andrew Ellis, psychiatrist, and Dr Christopher Lennings, psychologist, as court-appointed experts. The report of Dr Ellis dated 17 May 2021 and the report of Dr Lennings dated 24 May 2021 form part of Exhibit A.

  7. Oral evidence was given at the final hearing by the following persons:

  1. Nerida Newton, Unit Leader, Newcastle Community Corrections (T12-32) – Ms Newton made an affidavit dated 16 March 2021 (Exhibit A, page 677ff);

  2. Senior Constable Luke Hampton, High Risk Terrorist Offenders Unit, NSW Police Force (T33-41) – Senior Constable Hampton made an affidavit dated 24 May 2021 (Exhibit A, page 609ff);

  3. Dr Ellis and Dr Lennings gave evidence concurrently (T45-129).

  1. In advance of the final hearing, counsel had provided extensive written submissions on a range of topics. At the conclusion of the evidence, counsel made closing submissions (T131-183).

An Issue Concerning the Court-Appointed Expert Witnesses

  1. Before moving to the issues which require determination, reference should be made to an issue which arose in the course of the evidence of the court-appointed expert witnesses.

  2. As noted earlier, following the order made by Harrison J on 1 April 2021, Dr Ellis and Dr Lennings examined the Defendant and provided reports to the Court with respect to their respective examinations.

  3. In this respect, the Court made orders under s.24(5) THRO Act appointing a qualified psychiatrist and a registered psychologist to conduct separate psychiatric or psychological examinations of the Defendant and to furnish reports to the Court as to the results of those examinations and directing the Defendant to attend those examinations. Accordingly, each of Dr Ellis and Dr Lennings were examining the Defendant and reporting on their examinations as a result of an order made under the THRO Act. The term “qualified psychiatrist” is defined in s.4(1) THRO Act to mean “a registered medical practitioner who is a fellow of the Royal Australian and New Zealand College of Psychiatrists”.

  4. In the course of his examination of Dr Ellis and Dr Lennings, Mr Emmett SC elicited evidence that the legal representatives for the Defendant had spoken to each of Dr Ellis and Dr Lennings after each of them had furnished his report, but prior to the final hearing. Each of Dr Ellis (T48-49, T94-96) and Dr Lennings (T96-100) stated that the telephone discussions which arose from contact made by the legal representatives for the Defendant, occurred after the provision of his report and that the conversation with the legal representatives did not cause either Dr Ellis or Dr Lennings to alter his opinion on any matter.

  5. The examination of Dr Ellis and Dr Lennings on this topic culminated in a call being made by Mr Emmett SC for records of the conversations which the legal representatives for the Defendant had with Dr Ellis and Dr Lennings (T100-101). At the resumed hearing on 12 July 2021, Mr Emmett SC informed the Court that the Plaintiff did not seek to say anything further on that topic apart from providing an explanation as to why the questions had been asked of Dr Ellis and Dr Lennings in the first place (T167). The legal representatives for the Plaintiff had not been aware that contact of this type had been made with the experts.

  6. Given the important role of court-appointed experts under the THRO Act (and the Crimes (High Risk Offenders) Act 2006 (NSW)), it is appropriate to make some observations concerning what occurred in this case in the event that this issue arises again in future proceedings.

  7. An application for an ESO constitutes civil proceedings: s.50(1) THRO Act. Parties to proceedings under the THRO Act have the right to appear, call witnesses and give evidence, cross-examine witnesses and to make submissions to the Court on any matter connected with the proceedings: s.54 THRO Act.

  8. General provision is made concerning court-appointed experts in Rules 31.46-31.54 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). These provisions in the UCPR are of general application, and provide some guidance in circumstances where experts are appointed by the Court to undertake a particular task, and prepare a report for the Court with respect to that task for use in civil proceedings.

  9. In practice, where an order for examination by court-appointed experts is made under s.24 THRO Act, the necessary arrangements are made by the solicitor for the Plaintiff, usually a solicitor working within the Crown Solicitor’s Office. It is the solicitor for the Plaintiff who retains the expert witnesses (after consultation with the Defendant’s legal representatives) and provides materials to them and asks questions which are sought to be answered in any report. The reports of psychiatrists or psychologists appointed under s.24 THRO Act are provided to the Crown Solicitor’s Office with the reports being served upon the legal representatives for the Defendant and included, as occurred in this case, in documentary material placed before the Court at the final hearing.

  10. It is pertinent to note Rules 31.50 and 31.51 UCPR which state:

“31.50 Parties may seek clarification of court-appointed expert’s report

Any party affected may apply to the court for leave to seek clarification of any aspect of the court-appointed expert’s report.

31.51 Cross-examination of court-appointed expert (cf SCR Part 39, rule 4; DCR Part 28A, rule 4; LCR Part 38B, rule 4)

Any party affected may cross-examine a court-appointed expert, and the expert must attend court for examination or cross-examination if so requested on reasonable notice by a party affected.”

  1. The procedure for appointment of a psychiatrist or psychologist to prepare reports under the THRO Act is modelled largely upon the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The importance of psychiatric or psychological reports from court-appointed experts was emphasised in the second reading speech for the Crimes (Serious Sex Offenders) Bill 2006 (the predecessor to the Crimes (High Risk Offenders) Act 2006 (NSW)). Mr Carl Scully, the Minister for Police, said with respect to the appointment of expert witnesses following a preliminary hearing (Hansard, Legislative Assembly, 29 March 2006):

“If a prima facie case is made out in the application, the Supreme Court is to make an order for two psychiatrists to examine the offender and report independently. The appointment of two court-appointed psychiatrists is an important aspect of the scheme. It allows for a fair and independent medical opinion to be expressed. The psychiatrists will not be State employees, but will be private members of the Royal Australian and New Zealand College of Psychiatrists and the court will appoint them.”

  1. It has been observed that the preliminary hearing procedure allows the Court to filter out unmeritorious applications at an early stage and, if interim orders are made, to give the Court “the benefit of the expert opinions of two independent witnesses before making a final decision”: State of New South Wales v Manners [2008] NSWSC 1242 at [9].

  2. It is important to keep in mind that Dr Ellis and Dr Lennings were appointed under the statutory scheme in the THRO Act, whereby the Court, if satisfied of the requirements at a preliminary hearing, is required by s.24(5) THRO Act to appoint qualified psychiatrists and/or registered psychologists to conduct the examination of a person and report to the Court. This is not a scheme arising from the exercise of discretion by the Court in ordinary civil proceedings to which Rules 31.46-31.54 UCPR usually apply.

  3. It is of practical importance to note that proceedings under the THRO Act are conducted invariably on behalf of the Plaintiff by the Crown Solicitor’s Office with Legal Aid NSW being the usual (if not invariable) entity representing a Defendant in THRO proceedings.

  4. The observation of the Court is that highly qualified and experienced expert psychiatrists and psychologists are utilised as court-appointed experts in proceedings under the THRO Act and the Crimes (High Risk Offenders) Act 2006 (NSW). That is so in the present case, where Dr Ellis and Dr Lennings are both well known to the Court as expert witnesses of great experience and the highest reputation in their fields of forensic psychiatry and forensic psychology.

  5. With the possible exception of Rule 31.50 UCPR (see [26] above), there is no statutory provision or legal principle which prohibits contact by a legal representative for a Defendant in THRO Act proceedings from contacting an expert witness appointed under s.24 THRO Act.

  6. In my view, there ought be no contact by the legal representative for a Defendant in THRO proceedings with a court-appointed expert prior to the provision of a report by that expert.

  7. Once the expert witness has provided a report, which is served upon the legal representatives for the Defendant and ultimately provided to the Court, the circumstance may arise where the legal representative for a party wishes to seek clarification from the expert. As Rule 31.50 UCPR suggests, this step requires some caution. Given the time constraints which usually affect final hearings under the THRO Act (and the Crimes (High Risk Offenders) Act 2006 (NSW)), an application for leave from the Court should not be mandatory.

  8. Rather, as a matter of practice, it would be appropriate for the legal representative for the Defendant to notify the legal representative for the Plaintiff that such contact is sought to be made. That did not happen in this case. If it did, it may be that the controversy which arose at the hearing would not have resulted.

  9. Likewise, there is no reason why the legal representative for the Plaintiff could not, after giving notice to the Defendant’s legal representatives, contact a court-appointed expert after the provision of a report for the purpose of discussing the contents of the report.

  10. If there was objection to contact being made with the expert, then leave from the Court may be sought under Rule 31.50 UCPR.

  11. It may be that, in a probably rare case, any discussion with legal representatives for a party may see an additional or altered opinion arising. In such a case, it would be appropriate (if time allowed) for a supplementary report to be provided which outlined what had led to the expert amending or supplementing the opinion previously expressed in a report.

  1. Expert witnesses, such as those in the present case, are familiar with the practice of discussion with legal practitioners for parties in advance of giving evidence at a criminal trial or in civil proceedings. That practice should not be discouraged with respect to the final hearing in proceedings under the THRO Act. That said, it is desirable that notice is given inter partes that such a step is to be taken to reduce the prospect of controversy which ended up occupying some hearing time in this case.

  2. In making these observations, I emphasise that the evidence of Dr Ellis and Dr Lennings was not challenged by the Plaintiff, nor was any criticism directed to them arising from the preparedness of each of them to discuss his report by telephone with the legal representatives for the Defendant. Nor was it suggested that the legal representatives for the Defendant had acted improperly in contacting the experts. Rather, the problem arose from the failure to give notice of the proposed contact.

  3. I note, as well, that no issue arises in these proceedings involving contact between legal representatives for a party and an expert witness for the purpose of preparation of an expert report. These circumstances can give rise to difficulties by reference to legal professional privilege and the proper role of an expert witness in circumstances such as those considered by Lindgren J in Australian Securities and Investments Commissioner (ASIC) v Southcorp Ltd (2003) 46 ACSR 438; [2003] FCA 804.

  4. The statutory importance of expert reports ordered under s.24(5) THRO Act should be kept in mind when considering what may be the limits of appropriate contact between legal representatives for the parties and the expert witness appointed by the Court.

The Decision of Button J at the 2019 Final Hearing under the THRO Act

  1. The 2019 proceedings before Button J concerning the Defendant are of fundamental importance to the present application. The conduct of the Defendant which gave rise to the orders made by Button J in 2019 remains central to the present application for a further ESO.

  2. Indeed, as will be seen, a principal argument for the Plaintiff is that the basis upon which Button J determined to direct an ESO for a period of two years in 2019 remains unchanged, with there being no true ameliorating developments since then and with the unacceptable risk identified by Button J remaining constant. In these circumstances, it is appropriate to refer to statements made by Button J and associated findings in the 2019 proceedings.

  3. The index offence, and associated conduct of the Defendant, was described in Button J’s judgment after the preliminary hearing in State of NSW v Mathers [2019] NSWSC 7 at [1]-[29]:

“1   Mr John Mathers (a pseudonym for the defendant) was born in October 1972, and accordingly is 46 years of age. He has spent most but not all of his life living in the Newcastle area. As a teenager, his unfulfilled ambition was to join the RAAF. Instead, he studied jewellery-making at TAFE, and until recently rented premises in the Newcastle suburb of Charlestown in which he conducted a small business in that regard, and also resided.

2   In the early part of 2017, he commenced a dispute with the real estate agent for the lessor of those premises. In a nutshell, his complaint was that mould was growing inside the rented premises, and it was affecting his health. He put forward an odd explanation as to how the mould may have got there. He hung plastic sheets around the property, in an effort to protect himself from possible infection. His emails and texts to the real estate became more and more vitriolic.

3   Eventually, in May 2017 police were asked to check on the welfare of the defendant. They entered the premises and spoke to him. The living quarters of the defendant have been described by police as more like those of a teenager, rather than a middle-aged man. In the premises they found quite a few prohibited weapons, including two torch batons, a number of knives (some of them ceremonial in appearance, but no less sharp for that), and a Chinese made air gun that could readily be mistaken for a handgun capable of firing a deadly projectile.

4   They also found that the defendant had downloaded from the internet a very large volume of written material, and printed off some of it. Much of it was to do with the so-called Sovereign Citizen Movement (the Movement).

5   To interpolate a concise description of the Movement based upon the expert and other evidence placed before me, it originated in the United States of America, and is based on a conception of law that rejects the current United States polity as an imposed fraud that has unlawfully and immorally superseded the original ideas underpinning the American Revolution of 1776 and the US Constitution of 1787.

6   Its practical thesis is that individuals are entitled to resist the enforcement of laws made pursuant to that alleged fraud. For example, the Movement began as a rejection of the proposition that a citizen of that country is required to pay federal income tax.

7   The Movement has its idiosyncratic features quite apart from its fundamental thesis, an example of which is the adoption of a particular form of punctuation, which is preferred by adherents of the Movement to standard English usage.

8   In accordance with its underlying thesis, there has been on occasion violent resistance in the United States by its members to the enforcement of federal and state law, including by way of the murder of police officers and the attempted murder of judges.

9   The Movement has been connected to other aspects of political thought within that country, including survivalism (which involves preparedness for a post-apocalyptic world in which organised society has been destroyed), and armed militias (whereby US citizens take it upon themselves to form armed groups, often with an eye to defending not only the constitutional right to bear arms, but also a libertarian conception of the way in which the founding events and documents of that nation are said to mandate the current organisation of its society).

10   Some of the ideas of the Movement have been transposed to other countries, including Australia, despite its focus on particular aspects of the history of the United States.

11   Returning now to the search conducted by the police, other downloaded items discovered in the premises of the defendant at that stage included a lengthy article about how to make booby traps. It was placed in evidence before me, and appears to be very out of date; in my opinion, it could date from the Korean War or even earlier.

12   There was also located a lengthy document about how to manufacture plastic explosives.

13   In similar vein was a document entitled the ‘Guerilla’s Arsenal’.

14   Another document, seemingly prepared by an Australian, and to do with Australian politics, described itself as a ‘brief of evidence’ accusing a former Australian Prime Minister of being ‘attainted with treason’, and is redolent of the thinking of the Movement.

15   So is another document authored by a person who describes himself as ‘Johnny Liberty’.

16   Other, even more radical, documents were also located. Some of them speak of Queen Elizabeth II as having been convicted by a European court of child abuse. Others speak of satanic conspiracies, and refer to the demon ‘Moloch’. Yet another shows a distressing image of what appeared to be mutilated human bodies being fed to children at a formal dinner (I presume that it had been ‘photo shopped’).

17   The police also located scribbled documents in the handwriting of the defendant. Some of them are illegible, some unintelligible. But some of them appear to constitute efforts to understand the statutory and common law of this country. It is possible that some of the writings relate to the dispute about the mould, because they seem to make reference to offence-creating provisions to do with the infliction of a grievous bodily disease.

18   After the search of May 2017, police made enquiries about the online and other activity of the defendant. They discovered that, in November 2016, the defendant had purchased a commercial pressure cooker on a website that facilitates private buying and selling (the asserted relevance of that will become apparent shortly).

19   In January 2017, the defendant had downloaded from the internet blueprints whereby a private individual is said to be able to manufacture plastic firearms by use of a 3-D printer. One of them was for an airgun that, according to the blueprints, looked very much like a real weapon. But others were plans for weapons that are indeed real: a plastic sub-machine gun, a carbine rifle well-known to be used by the United States Army, and a plastic semi-automatic pistol (I interpolate again that it is well known that the highly regarded Glock semi-automatic pistol is largely made of plastic).

20   On 6 February 2017, the computer of the defendant was used to access a YouTube video entitled ‘See the Difference Between Pipe Bombs and Pressure Cooker Bombs’.

21   Separately, on 3 March 2017 two letters were discovered at the parliamentary office of an opposition member of the New South Wales Parliament (the MP). On the outside of each envelope, the following typewritten words appear verbatim:

‘To The Minister

You are in TREASON ,,, you will be hung untill you are dead

No Mercy , No Prisoners

You are scum’

22   Inside were located typewritten documents that provide a purported analysis of the Australian Constitution. That analysis is consistent with the approach of the Movement to such matters.

23   The MP was understandably very distressed by the discovery, and the police were of course contacted. In due course, they located a DNA profile on adhesive tape attached to one of the envelopes that was consistent with the profile of the defendant.

24   As a result, he was charged with the following offences: sending a document threatening death or grievous bodily harm; two counts of possessing or using a prohibited weapon without a permit; and possessing an unregistered firearm, in the form of a pistol.

25   The defendant was granted bail. However, in August 2017, he failed to appear in answer to that bail, and was subsequently arrested and bail refused.

26   In due course, the defendant pleaded guilty to all offences. On 21 February 2018, he was convicted and sentenced to imprisonment in the Local Court. The aggregate sentence imposed comprised a head sentence of 1 year 4 months, with a non-parole period of 12 months, each to date from 19 September 2017, the former to expire on 18 January 2019, and the latter to expire on 18 September 2018.

27   Meanwhile, in October 2017, the digital material containing the blueprints for the firearms had been seized by police. It took quite some time for that material to be analysed, but after it was, the defendant was charged in November 2018 with offences arising from those downloads. He has always been bail refused on those charges.

28   In the meantime, it had been proposed that he be released at the end of his non-parole period on 18 September 2018. Once the nature of those downloads came to light, however, the State Parole Authority intervened and took steps to ensure that the defendant would not be released to parole.

29   His custodial position as at the date of the hearing before me, 11 December 2018, was therefore that his current sentence will expire in its entirety on 18 January 2019. He is also bail refused on the most recent charges, but of course could lodge a bail application (either to the court of charge, or to this Court) at any time.”

  1. Following the final hearing, Button J explained the Court’s decision as to why the requirements of s.20(d) THRO Act had been made out. In State of NSW v Mathers (No. 2), his Honour said at [30]-[48]:

“30   … I consider that the test to be found in s 20(d) of the Act has been established, for the following reasons.

31   First, whatever he may say now, the defendant was certainly at one stage in the thrall of the Movement. So much is established not just by the message on the exterior of the envelopes, which is redolent of the language and philosophy of the Movement. It is also established by what was placed inside the envelopes by the defendant. And it is further established by material that he has posted to the internet, whereby both what he has said and how he has said it demonstrate his connection to the Movement (see, with regard to the offences of which the defendant has been convicted, s 25(3)(j) of the Act).

32   Secondly, the events upon which this application is founded are not in the distant past: to discuss the most important events a little out of chronological order, the pressure cooker was purchased in November 2016; the YouTube video – the title of which mentioned an improvised explosive device (IED) constructed from a pressure cooker – was accessed by the defendant in February 2017; the envelopes were delivered to the MP in March 2017; and the blueprints for the manufacture of plastic firearms were allegedly downloaded in January 2017 (see, again, s 25(3)(j) of the Act).

33   In other words, the application of the plaintiff is not founded on events from long ago from the time of the youth of a mature defendant, or even from several years ago; the earliest significant fact upon which the plaintiff relies occurred less than 26 months ago (see, yet again, s 25(3)(j) of the Act).

34   Thirdly, it is true that in my preliminary judgment I did not express myself to be satisfied that the Movement promotes or explicitly supports political violence. But it is undoubtedly a potent political philosophy, and an unorthodox, indeed radical, one at that. And, as one would expect in light of its fundamental thesis of the illegitimacy and immorality of modern states that derive from the British tradition of parliamentary democracy, the separation of powers, and the rule of law such as the United States of America and Australia, on occasion its adherents have resisted the exercise of State power with violence. Sometimes, that force has been deadly (see s 25(3)(m) of the Act).

35   Fourthly, as I have said, whatever he may say now, I am well satisfied that the defendant did indeed send the envelopes to the MP – itself a serious offence that was judged by the learned sentencing Magistrate to attract an inevitable sentence of full-time imprisonment (s 25(3)(k) of the Act). And although I was not satisfied that they fell within the strict definition of ‘making a statement advocating support for any terrorist act’ in my preliminary judgment, they undoubtedly express a judgement that the gravest political crime known to our criminal law had been committed by a politician, and that the death penalty was to be enacted upon the purported convict. That view was expressed and promulgated by the defendant as recently as around 26 months ago.

36 In other words, although in my opinion not in itself a terrorist act as defined, the fact that it was an act that spoke of fatal violence to be inflicted upon a serving politician for an asserted political crime is highly significant in my current assessment of whether the defendant may engage in the future in an act of political violence as defined in the Criminal Code.

37   Fifthly, in my preliminary judgment, I recounted my impression that emotional disturbance or mental illness of some kind had played a role in the bizarre actions of the defendant. In particular, I expressed the tentative view that the seeming trigger of concern (to the point of obsession) about the alleged ‘mould problem’ could very largely be sheeted home to such an issue. In my opinion, the evidence placed before me since then bears out my original impressionistic suspicion.

38   But it is one thing to accept that, in the context of some sort of personal crisis, the defendant developed a bitter grievance that was based at least partly on delusion, and that was the starting point for much of his behaviour. It is quite another to be confident that such a problem will never arise again, merely because it has only occurred once in his life; to be clear, I do not possess such a confidence.

39   And separately within this consideration of the mental state of the defendant, although I accept the expert evidence that many persons who engage in political violence are not able to be diagnosed with any formal mental illness, the fact that one may have been mentally disturbed is hardly a guarantee that one will not engage in political violence in the future. To express that more simply, although mental disturbance is by no means a prerequisite for the commission of political violence, nor is it an excluding factor.

40   Sixthly, in my opinion the point is soundly made by senior counsel for the plaintiff that the seemingly recently developed refusal of the defendant to take responsibility for the sending of the envelopes to the MP, in the face of powerful evidence to the contrary, is troubling indeed (see s 25(3)(m) of the Act). In my mind, it casts a significant pall over all of the progress that has been made in the past many weeks.

41 Seventhly, it is perfectly true that the mental elements to be found in the Criminal Code with regard to terrorist acts are rigorous and specific. On the other hand, the physical elements of offences to be found there are broad; by way of example, they include doing acts in preparation for a terrorist act. In other words, the risk that I am asked to assess pertains to the possibility of the commission of offences that are in some ways narrow, but in other ways are broad.

42   Eighthly, my satisfaction of the crucial test is based upon a concatenation of factors, much like a circumstantial case in a criminal trial. In other words, it is not a matter of reflecting merely separately upon: the obsessive concern of the defendant about mould at his premises; the purchase of the pressure cooker; the accessing of the YouTube video about an IED made from a pressure cooker; the sending of the envelopes to the MP; the alleged downloading of the blueprints for the manufacture of plastic firearms by a person in possession of a 3-D printer; the downloading of material to do with the Movement; the downloading of a great deal of material about the infliction of injury and death in military contexts; the current refusal to take responsibility for the envelopes; and the possession reasonably recently of prohibited weapons.

43   To the contrary, in a manner well familiar to criminal lawyers and judges, it is a matter of reflecting upon each of those facts in the context of all of the others.

44   Taken as a whole, in my opinion they paint a troubling picture indeed about the risk of what could happen in the future.

45   Ninthly and finally, and speaking very generally of the voluminous psychological and psychiatric material that was placed before me, my own respectful opinion is as follows (see s 25(3)(a)-(c) of the Act).

46   In light of the prior lack of violent offending; the reflection that I believe the defendant has been brought to by his interactions (including incarceration) with the criminal justice system and the regime under consideration of preventative curtailment or deprivation of liberty pursuant to the Act; the very sound progress that has been made by the defendant since his release; the therapeutic and rehabilitative effects of the ISO (see generally s 25(3)(f), (g), (h) and especially sub-s (i)(iii) of the Act) and the opinions of psychiatrists and psychologists taken as a whole, the risk of this man offending is not overwhelming; I certainly am not satisfied that it is high.

47   But I respectfully adopt what was said by Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [27] about an analysis based on, on the one hand, the degree of risk, and, on the other hand, the consequences were that risk to eventuate. In that regard, I believe that I am entitled to take judicial notice of the catastrophic physical and no doubt psychological consequences of the ‘Boston Marathon bombing’, which is notorious to have been effected by IEDs readily manufactured from two pressure cookers.

48   In short, respectfully contrary to the comprehensive written and oral submissions of counsel for the defendant, reflecting upon all of the evidence placed before me at the stage of the final hearing, I am satisfied that the central statutory test has been established in this case. And in saying that, I have of course borne in mind the statutory mandate that the paramount consideration is the safety of the community: s 25(2) of the Act.”

Issues on the Present Application

  1. The principal issues arising for determination in this judgment are the following:

  1. whether the Defendant is a “convicted NSW terrorism activity offender” for the purpose of s.20(c)(iii) THRO Act – in this respect, counsel for the Defendant seeks to go behind the findings of Button J in 2019 so as to invite a different conclusion to that reached by his Honour on this topic, with this question giving rise to arguments concerning issue estoppel and the capacity of the Court, on a subsequent application under the THRO Act, to depart from findings made at a final hearing on an earlier occasion under the THRO Act;

  2. if the Defendant is a “convicted NSW terrorism activity offender”, whether the Plaintiff has established, for the purpose of s.20(d) THRO Act, that he poses an unacceptable risk of committing a serious terrorism offence.

Chronology of Events Concerning the Defendant

  1. The present proceedings involve a fresh application by the Plaintiff under the THRO Act with respect to the Defendant. I have set out earlier Button J’s recital of the factual background to the 2019 application, together with his Honour’s conclusions under s.20(d) THRO Act concerning the Defendant.

  2. For the purposes of the present application, it is appropriate to refer, in chronological order, to relevant events concerning the Defendant. It is necessary to keep in mind events that predated the making of the ESO by Button J on 29 April 2019 and subsequent events that assist, as best one can, a contemporaneous understanding of the Defendant for the purpose of these proceedings.

Background of the Defendant

  1. As noted earlier, the Defendant was born in October 1972 and is now aged 48 years. He completed the Higher School Certificate and commenced university studies, but ceased those studies to become a jeweller. The Defendant completed a TAFE certificate in the jewellery trade.

  2. The Defendant had an unremarkable upbringing and family life. He has had two significant relationships which he reported had ended due to mental health issues on the part of each partner. He reported experiencing depression some 10 years prior to the ESO application determined by Button J in 2019.

  3. The Defendant worked as a jeweller, as an employee or self-employed, for more than 20 years. There is no history of significant alcohol or drug use on his part. He has no criminal history prior to the events in 2017.

  4. From December 2012, the Defendant conducted a jewellery business from leased commercial premises in the Charlestown Arcade, Charlestown. Mr Paul Booker of Ray White Commercial, Newcastle was the commercial property manager with respect to the leased premises.

The Defendant’s Conduct in 2016 and 2017

  1. From November 2016, the Defendant sent disturbing and threatening emails to Mr Booker. The context for these emails was the Defendant falling into arrears in rent for the leased premises for his jewellery business. On 7 November 2016, the Defendant sent an email stating:

“I will get a kettle cord, two nails and a piece of wood and melt their skin off if you like, as that’s the sociopathic managerial way is it not?”

  1. On 10 November 2016, the Defendant sent an email to Mr Booker stating:

“OK I will go to the bank and rob it … Shoot everyone and burn charlestown to the ground … Cheers.”

and

“You will get your precious money … Regards … Your slave .. Chris.”

  1. In late March 2016, the Defendant downloaded files, including 3D printing files for an assault rifle, which was later identified by Scientific Officer Walter Murphy as an imitation firearm (Exhibit A, pages 794EE-794GG).

  2. On 24 November 2016, the Defendant made enquiries on Gumtree about the purchase of a commercial-grade pressure cooker for $90.00. A pressure cooker was later located at the Defendant’s premises.

  3. On 18 December 2016, the Defendant downloaded files, including 3D printing files, for an item later identified by Scientific Officer Murphy as a prohibited pistol capable of firing a projectile. The Defendant downloaded, as well, a number of files relevant to the Sovereign Citizen Movement (“SCM”), about which more will be said later in the judgment (at [118]-[132]).

  4. On 4 January 2017, the Defendant downloaded 3D printing files for an item later identified by Scientific Officer Murphy as a firearm part.

  5. On 6 January 2017, the Defendant downloaded a large number of files relating to the SCM (Exhibit A, pages 794MM-794OO).

  6. On 15 January 2017, the Defendant downloaded files including 3D printing files for an Airsoft gun, later identified by Scientific Officer Murphy as an air gun (a prohibited firearm) and for a Cobra trench knife (a prohibited weapon). In addition, the Defendant downloaded a number of files relevant to the SCM.

The Index Offence under s.31 Crimes Act 1900 (NSW)

  1. On 3 March 2017, the two letters referred to by Button J in State of NSW v Mathers at [21]-[22] (see [45] above) were located at the Parliamentary Office of Jodie Harrison MLA, the Member for Charlestown. Inside the envelopes was material printed from an Internet website, including writings to the effect that the Commonwealth of Australia is a corporation made up of corporations controlled by foreign corporations, a doctrine consistent with the beliefs of the SCM. The envelopes were examined forensically by NSW Police and were later connected to the Defendant following a search of his jewellery store in May 2017.

The Defendant’s Disturbing Conduct Continues in 2017

  1. On 20 March 2017, the Defendant reported a mould issue in his Charlestown shop to the caretaker of the Charlestown Arcade. In March-April 2017, the Defendant was engaged in a dispute with the agent, Mr Booker, over the apparent mould issue at the leased premises. Mr Booker stated that he had received a “constant barrage of emails and text messages” from the Defendant, with that flow of communications having intensified between March and May 2017. Mr Booker stated that the “emails and texts talk about law and acts that are nonsensical” and that the Defendant had sent Mr Booker “links to conspiracy theory sites” as well as a link to “a death metal site with disturbing themes” (Exhibit A, pages 494-495).

  2. Between 22 April and 1 May 2017, the Defendant accessed websites relevant to the SCM.

  3. On 2-3 May 2017, at the suggestion of Mr Booker, police conducted a welfare check on the Defendant at his business premises. In the course of that welfare check and the subsequent execution of a warrant on 3 May 2017, police located at the Defendant’s business premises:

  1. prohibited weapons (nunchucks and a slingshot with ball bearings);

  2. a prohibited firearm (a replica pistol);

  3. a number of large decorative knives and long torches/ batons;

  4. voluminous print and electronic material evincing anti-government sentiments (indicating an attachment to the SCM) and the infliction of injury and death in military contexts, including kidnapping, how to make booby traps, bombs and explosives; and

  5. a 3D printer (which was observed, but not seized at that time).

  1. Police also seized, on 3 May 2017, the Defendant’s “Callmaster” desktop computer which contained evidence of Internet searches in relation to anti-government propaganda, US Army encyclopaedia of explosives, 3D printable Airsoft guns and other 3D printable guns, rocket propulsion, sniper training, survival training, covert entry techniques for CIA spies, a booby trap field manual, a preparatory manual of explosives and “anti-government documents’ (Exhibit B, pages 554-559).

  2. Over a period of time in 2016 and 2017 which cannot be reliably identified, the Defendant made multiple posts on LinkedIn indicating knowledge of and apparent support for the SCM. Senior Constable Hampton gave evidence concerning the Defendant’s LinkedIn posts and accepted that the time span over which these posts were made could not be identified with any certainty. Comments made by the Defendant in these LinkedIn posts include strong sentiments adverse to politicians and the Australian Government and had the flavour of SCM beliefs in the illegitimacy of government (Exhibit A, pages 609-676) (see, for example, the posts mentioned at [186]-[187] below).

The Defendant is Arrested on 3 May 2017

  1. On 3 May 2017, the Defendant was arrested and charged with possession of an unregistered firearm contrary to s.36(1) Firearms Act 1996 (NSW), possession of prohibited weapons without a permit contrary to s.7(1) Weapons Prohibition Act 1998 (NSW) and sending a document threatening death to Ms Harrison MLA, the latter being an offence under s.31 Crimes Act 1900 (NSW). The Defendant was released on bail.

  2. On 1 September 2017, the Defendant was again released on conditional bail by the Local Court having been arrested for failing to appear on 30 August 2017 at the Newcastle Local Court.

  3. The Crown made a detention application in the Supreme Court seeking revocation of the Defendant’s bail. In those Supreme Court proceedings, the Defendant swore an affidavit on 19 September 2017 which he executed using a red ink fingerprint on each page and included other features consistent with SCM beliefs (Exhibit A, page 426). More will be said about this when outlining the expert evidence concerning the SCM (see [127]-[131] below). It should be kept in mind that the Defendant’s conduct concerning this affidavit occurred some six months after he committed the s.31 Crimes Act 1900 (NSW) offence involving the threatening letters to Ms Harrison MLA. The Defendant’s deep interest in the SCM, and adoption of its practices, was manifesting itself over an extended period in 2017, including an important formal document (an affidavit) which he chose to deploy in a bail application before the Supreme Court.

  4. On 21 September 2017, the Supreme Court revoked the Defendant’s bail for the offences with which he had been charged on 3 May 2017 and he was remanded in custody.

  5. On 4 December 2017, police served the Defendant with a Firearms Prohibition Order under s.73(1) Firearms Act 1996 (NSW) and a Weapons Prohibition order under s.33(1) Weapons Prohibition Act 1998 (NSW) whilst the Defendant was in custody at the Long Bay Correctional Centre.

  6. On 4 December 2017, police attached to the New South Wales Fixated Persons Investigation Unit conducted a search of the Defendant’s residence and they observed (but did not seize) a pressure cooker which had been purchased by the Defendant and a USB device stored in the Defendant’s dressing table.

The Defendant is Sentenced to Imprisonment by the Local Court

  1. On 21 February 2018, following pleas of guilty, the Defendant was sentenced for the offences under s.31 Crimes Act 1900 (NSW), s.36(1) Firearms Act 1996 (NSW) and s.7(1) Weapons Prohibition Act 1998 (NSW), by Magistrate Brennan at the Newcastle Local Court, to a total effective sentence of imprisonment for 16 months commencing on 19 September 2017 with a non-parole period of 12 months expiring on 18 September 2018.

Later Events in 2018

  1. On 18 September 2018, the day before the Defendant’s potential release on parole, the State Parole Authority determined not to release him on parole as “the defendant poses a serious and immediate risk to the safety of the community”.

  2. On 3 October 2018, whilst the Defendant was still in custody, police executed a search warrant at the Defendant’s residence and sighted a “Cocoon Create” 3D printer in the Defendant’s workshop. Police seized a USB device stored in the Defendant’s dressing table. The USB contained 720 files including 3D printer blueprints, copies of books and other published material evincing anti-government sentiment and the infliction of injury and death in military contexts, including manuals on kidnapping, how to make booby traps, bombs and explosives. Expert analysis of the USB device later revealed that a large number of the files contained digital blueprints for the 3D printing and manufacture of firearms and replica firearms. Expert analysis also established that these blueprints had been placed on the USB stick before the Defendant’s initial arrest by police in May 2017. The Defendant was subsequently charged on 20 November 2018 with offences relating to possession of these blueprints.

  3. On 9 October 2018, police returned to the Defendant’s residence and seized the 3D printer sighted during searches on 3 May 2017 and 3 October 2018. Subsequent expert examination of the 3D printer concluded that it was capable of producing physical parts from digital blueprints, although the device did not appear to have been used for any significant duration or to create any significant number of objects. Of the files contained on the USB stick, 411 were digital blueprints of what appeared to be firearms, firearm parts or non-firing ammunition suitable for manufacture on a 3D printer.

Defendant Arrested and Charged with Further Offences

  1. On 20 November 2018, whilst still in custody, the Defendant was arrested and charged at Goulburn Police Station with 12 offences of possession of a digital blueprint for the manufacture of firearms contrary to s.51F(1) Firearms Act 1996 (NSW). The Defendant participated in an electronically recorded interview with respect to these matters (Exhibit B, pages 80-138).

  2. On 21 November 2018, police executed a search warrant at the Goulburn Correctional Centre where they searched the Defendant’s property and seized paperwork including the affidavit which he had executed using red ink thumbprints in September 2017 for the purpose of the Supreme Court bail application (see [70] above).

The THRO Act Proceedings in 2019

  1. Following a preliminary hearing under the THRO Act held on 11 December 2018, Button J made an ISO on 16 January 2019: State of NSW v Mathers.

  2. On 18 January 2019, the Defendant’s sentences imposed on 21 February 2018 expired. However, he remained in custody, bail refused, in relation to the charges of possession of digital blueprints for the manufacture of firearm offences.

  3. On 31 January 2019, the ISO ordered by Button J on 16 January 2019 commenced as the Defendant had been granted bail for the possess digital blueprints for the manufacture of firearm offences on the condition that he comply with the ISO.

  4. On 18 February 2019, Scientific Officer Dominic Raneri undertook an examination of the 3D printer found at the Defendant’s premises and assessed it as being capable of producing physical parts from digital blueprints. The device did not appear to have been used to create any significant number of objects. The printhead was in a non-operational condition due to a blockage, though such blockages were said to be a common occurrence and “are generally easily rectifiable by the typical user”.

  5. On 29 April 2019, after a final hearing, Button J ordered an ESO with respect to the Defendant for a period of two years: State of NSW v Mathers (No. 2).

Events After ESO Ordered on 29 April 2019

  1. On 14 May 2019, Scientific Officer Walter Murphy provided a report in relation to firearms produced using some of the digital blueprints held by the Defendant, in relation to which charges had been laid on 20 November 2018. One of the firearms was test fired and determined to be in working condition. The other firearm was assessed as substantially duplicating a firearm for which a licence or permit is required.

  2. On 28 November 2019, the Defendant attended a THRO Psychology session. The summary of the psychologist’s notes from the session recorded:

“Mr Hardy has maintained the stance that he will limit his activities and interests until the completion of his order, as he believes the system will try to ‘entrap’ him.”

Events in 2020

  1. On 6 February 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

“He has hypothesised that the current order is based on either the real estate management having connections within the government, or he was targeted by another unknown government body.”

  1. On 5 March 2020, the Defendant attended a THRO Psychology session and the VERA-2R and TRAP-18 risk assessment tools were administered. The assessing psychologist noted:

“It is noted that over the last month, and in particular following a change in lawyers where his court matters were adjourned Mr Hardy’s presentation appears to have deteriorated. Specifically he has increasingly presented with fixated and paranoid thinking patterns and increased irritability and grandiose statements within sessions, which has impacted on his ability to attend on session material. Mr Hardy has returned almost exclusively to ruminating on the mould issue in his retail store, and the perceived link between this and other assertions regarding his mental health. Additionally Mr Hardy insinuates that the government or police have interfered with the current court process. Based on this presentation the author has made recommendations to his Community Corrections team that Mr Hardy be referred to a psychiatrist for further assessment of these symptoms.”

  1. On 8 May 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

“He also cites a belief that the police were the ones to have originally perpetuated the assumption that he was mentally ill in order to have his words discredited in the court of law. Mr Hardy appears fixated on this, expressing that the police, courts and initial assessing psychologists are fraudulent and defamatory, and should be sued.”

  1. On 26 June 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

“Mr Hardy states his intention to obtain a law degree in order to resolve his current grievances relating to the ESO namely, to litigate against the assessing psychologists and other legal, policing and correctional professional involved. When challenged regarding how this fits with the no thought consciousness [tenet] of living in the moment rather than the past, Mr Hardy acknowledged that he was at a cross roads, where he either had to choose staying the past (law degree) or living in the future (employment, buying tools for work which he notes may go against his order).”

  1. On 1 September 2020, the Defendant attended a further THRO Psychology session. A summary of the psychologist’s notes from the session stated:

“Whilst he acknowledges types of behaviour he may need to shift (eg [type] of information he downloads) he attributes this to the impingement of his freedoms by a paranoid and authoritarian ‘state’ rather than an intrinsic need to mitigate his own vulnerabilities … Mr Hardy stated that he felt the greatest personal need in no thought consciousness was to be free from persecution and by pursuing a law degree he is able to get his freedom back and ‘prove he was right’.”

  1. The psychologist noted on 1 September 2020, referring back to March 2020 and 17 April 2020 as well, that ongoing attempts by both Community Corrections and the psychologist to encourage the Defendant to engage in an assessment with a psychiatrist had been “adamantly refused” by the Defendant.

  2. On 5 September 2020, the Defendant attended a THRO Psychology session and the VERA-2R and TRAP-18 tools were administered.

  3. On 23 September 2020, the Defendant attended a THRO Psychology session with a new psychologist who noted, amongst other things, that the Defendant “presented as indifferent and perceives these psychology sessions as being a tick and flick exercise”.

  4. On 30 September 2020, Ms Rachel Terry, senior psychologist, produced a THRO Psychology Progress Report with respect to the Defendant. The report stated that the Defendant’s overall risk profile through extremist violence, politically motivated violence or terrorism was assessed as being in the moderate range. It was noted that there had been an overall reduction in risk from the initial risk assessment report completed by Ms Kocak in December 2018, but Ms Terry expressed the view that “this decrease is largely reflective of the containment effect of his ESO, highlighting Mr Hardy’s ongoing avoidant behaviours, rather than being reflective of intrinsic change to his primary risk indicators”. It was stated that the Defendant had demonstrated an ability to follow the conditions of his ESO with precision, but that “this has not coincided with a shift in terms of his awareness of the motivation to engage in interventions targeting the areas of risk or vulnerability”.

  1. Fifteenthly, it is not necessary for the Court to identify a specific “serious terrorism offence” for the purpose of the risk assessment under s.20(d) THRO Act (see [152] above). However, given the broad range of conduct accommodated under that heading, including preparatory offences and planning offences, I consider that the type of conduct undertaken by the Defendant in 2017 provides an appropriate foundation for an assessment of the risk of repetition of behaviour of that type in the future unless the Defendant is subject to an ESO.

  2. Sixteenthly, I do not consider that the Defendant is assisted by the decision in State of NSW v Dickson at [76]-[77]. I am satisfied that the Defendant had the relevant intention to threaten acts of violence in 2017 and that there is an unacceptable risk that such an intention will recur in the absence of an ESO. The suggestion that the Defendant may have been subject to a transient delusional state does not stand in the way of this finding.

  3. I express my satisfaction, to a high degree of probability, that the Defendant poses an unacceptable risk of committing a serious terrorism offence if he is not kept under supervision under an ESO.

Discretionary Refusal of an ESO?

  1. As the Court of Appeal noted in State of NSW v Naaman (No. 2) at [29] (6) (see [145] above), the Court has a discretion to decline to order an ESO under s.20 THRO Act, even if the statutory requirements for such an order have been satisfied.

  2. It was submitted for the Defendant that if the Court reached this point, a decision should be made declining to make an ESO. In support of this submission, reliance was placed on the availability of other forms of supervision or scrutiny of the Defendant, including the ICO and the Firearms and Weapons Prohibition Orders. It was submitted as well that the Mental Health Act 2007 (NSW) was available to accommodate any risk posed by the Defendant if mental decompensation occurred.

  3. I have considered these submissions. I am satisfied that an ESO should be made. These other forms of supervision, official scrutiny or possible treatment for mental health problems do not address the particular risk posed by the Defendant in this case.

  4. Given a submission made for the Defendant (see [306] above), I should emphasise that the Court is determining the present application on the evidence adduced at the hearing. The decision by the Court does not constitute a foundation for rolling ESOs to be made in the future with respect to the Defendant.

Duration of the ESO

  1. Section 26(6) THRO Act allows for an ESO to be made for a period not exceeding three years.

  2. With respect to the duration of an ESO, I note that the Plaintiff, in the Further Amended Summons, sought an order for a period of two years. Dr Ellis indicated that, if an ESO is to be made, an order for a period of one year may be appropriate in the circumstances of the case.

  3. I am satisfied that an ESO should be directed to operate for a period of 18 months from the expiration of the existing ISO on 28 July 2021.

  4. This is an appropriate period to allow the Defendant an opportunity to progress his proffered change of attitude expressed in March 2021 concerning engagement with the PRAXIS Psychology sessions. In my view, that is an important part of the ESO, given the effective lack of progress in that respect between April 2019 and March 2021. An ESO of this duration will encourage the Defendant to undertake rehabilitation as well as serve to ensure the safety and protection of the community: s.3(1) and (2) THRO Act.

  5. Further, a period of 18 months will provide for the ESO to run after the expiration of the ICO in June 2022. The ESO will serve an entirely different purpose to the ICO, and it is important that the ESO operate on its own for a period with respect to the Defendant.

Conditions of the ESO

  1. Section 29 THRO Act makes detailed provision for conditions to be imposed on an ESO, with s.29(1A) providing for certain presumptive conditions to be included, unless the Court “orders differently”.

  2. Written submissions were made on behalf of the Plaintiff and the Defendant concerning conditions of an ESO and counsel addressed the question of conditions at the conclusion of the final hearing (T178-183).

  3. I note that the conditions placed on the ISO by Harrison J on 1 April 2021 reduced, in a number of respects, the conditions which had applied to the ESO directed by Button J in 2019.

  4. In determining the conditions of the ESO, I will refer to the conditions attached to the Further Amended Summons dated 1 July 2021. In accordance with usual practice, I will maintain the paragraph numbering in the proposed conditions and, where certain conditions are not to be included, I will not utilise those condition numbers for the purpose of subsequent conditions. As a result, the conditions ordered will use the formula “not utilised” next to numbers which are not directed to be conditions of the ESO.

  5. I have considered the submissions made on behalf of the Plaintiff and the Defendant with respect to conditions. It is important that the conditions should address the Defendant’s mental health issues and the risk of potential decompensation in his mental health. In addition, conditions ought be included which prevent the Defendant from accessing extremist material or possessing weapons or firearms and monitoring his Internet activities with a view to assessing whether he has returned to his anti-government fixated thought processes.

  6. I have had regard to what was said by Dr Ellis and Dr Lennings concerning proposed conditions as well as statements in other reports which provided an explanation or foundation for the conditions sought by the Plaintiff.

  7. Proposed Condition 3, under the heading “Monitoring and Reporting”, provides for the Defendant to submit to the supervision and guidance of an Enforcement Officer responsible for the supervision of the Defendant under the ESO. The condition as sought is in a form as utilised by Harrison J in the ISO made after the preliminary hearing. It is in terms of the presumptive order contained in s.29(1A)(a) THRO Act.

  8. I note that the Plaintiff does not seek proposed Conditions 6-9 concerning a schedule of movements. In these circumstances, I consider proposed Condition 3 is reasonable and note that it is not intended to operate as a type of backdoor way of introducing a requirement for a schedule of movements.

  9. Objection is taken on behalf of the Defendant to proposed Condition 32 which states “The defendant must inform his EO [Enforcement Officer] of the identity of any person with whom he does, or is likely to, regularly associate”. I note that proposed Conditions 30, 31, 33 and 34 will provide for non-association by the Defendant with certain persons or organisations.

  10. The objection made by the Defendant to proposed Condition 32 is that it would operate to inhibit prosocial activities and positive rehabilitative activity of a type recommended by Dr Ellis and Dr Lennings.

  11. Having regard to the other non-association conditions to be imposed, I do not consider that Condition 32 should be included. The risk posed by the Defendant will not be mitigated in any meaningful way by imposition of that condition which may serve to operate in a negative fashion if utilised.

  12. I decline to include proposed Condition 32.

  13. I note that proposed Conditions 35, 36, 40, 42A, 42B, 43, 48, 50 and 56 all relate to possession of firearms or prohibited weapons, access to the Internet and other electronic communications and access to violent and extremist material. I am satisfied that these conditions are appropriate in the circumstances of this case.

  14. Proposed Conditions 62-67 appear under the heading “Medical intervention and treatment”. Those conditions as sought are as follows:

“62.    The defendant must notify his EO [Enforcement Officer] of the identity and address of any health care practitioner that he consults.

63.    The defendant must attend, upon the direction of his EO, any psychological and psychiatric assessments or counselling, therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

64.    The defendant must take all medications that are prescribed to him by his medical practitioners for the purposes of treating any identified mental health condition or psychological or psychiatric illness or symptom.

65.    The defendant must notify his EO immediately if he ceases to take any medication referred to in the above condition.

66.    The defendant must agree to any of the healthcare providers, that provide treatment or service in relation to his mental health, sharing information, including reports on his progress, and information he has told them, with one another and with his EO, if the relevant healthcare provider forms the view that sharing such information is necessary to ensure effective management of the defendant's risk factors.

67.    The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, his EO, NSWPF [NSW Police Force] and CSNSW [Corrective Services NSW].”

  1. Objection was made on behalf of the Defendant to Conditions 63, 64, 65 and 66 as being unnecessary in this case. Particular objection was taken to Condition 66 because of the obligation placed on the healthcare provider to share information concerning the Defendant.

  2. It was submitted for the Plaintiff that these conditions were important given the risk factors surrounding the Defendant including the risk of mental decompensation and of conduct involving advocacy in support of violent extremism.

  3. I note that Harrison J was not prepared to make proposed Condition 66 (in its then form) as part of the ISO: State of New South Wales v Hardy at [47]-[48]. His Honour observed that, on one view, it was potentially counterproductive as it may lead a person in the Defendant’s position, who was in need of sensitive and confidential care, to refrain from seeking such treatment because of privacy concerns.

  4. In my view, the concerns expressed by Harrison J are met by the modified form of proposed Condition 66 as now sought by the Plaintiff. That form of condition makes clear that the Defendant is required to agree to any of the healthcare providers, who provide treatment or services to him in relation to his mental health, sharing information “if the relevant healthcare provider forms the view that sharing such information is necessary to ensure effective management of the defendant’s risk factors”.

  5. This is a different formula to that rejected by Harrison J. The present form of condition confines the prospect of sharing information to circumstances where the healthcare provider forms the view that it is necessary to ensure the effective management of the Defendant’s risk factors. If any development in the treatment of the Defendant activates this verbal formula, it is appropriate that the information be shared with other healthcare providers and the Enforcement Officer, who has the responsibility of supervising the Defendant under the ESO.

  6. Given the significant risk factors identified in this case, I consider that each of proposed Conditions 62-67 is appropriate in the case of the Defendant. The Defendant continues to present, in a troubling fashion, as a person who has been diagnosed with mental illness in the past and with the prospect that features of that mental illness continue to persist, but with denial on his part that he has suffered from mental illness. Conditions concerning mental intervention and treatment of the Defendant are important for the purpose of the operation of the proposed ESO.

  7. I am satisfied that each of the conditions sought by the Plaintiff, with the exception of proposed Condition 32, should be made.

Orders

  1. I make the following orders:

  1. an order pursuant to ss. 20, 25(1) and 26 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO Act”) that the Defendant be subject to an extended supervision order for a period of eighteen months from 28 July 2021 to expire on 27 January 2023; and

  2. an order pursuant to s.29 THRO Act directing the Defendant, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to this judgment.

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State of NSW v Hardy (Final) - Schedule (119035, pdf)

Amendments

26 July 2021 - relocated link to PDF schedule

Decision last updated: 26 July 2021

Most Recent Citation
Cases Cited

42

Statutory Material Cited

10

Alvares v R; Farache v R [2011] NSWCCA 33
Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804
Australian Securities and Investments Commission v Southcorp Ltd [2003] FCA 804