State of New South Wales v Holt (No 8)

[2023] NSWSC 1363

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Holt (No 8) [2023] NSWSC 1363

Hearing dates:

5, 6, 28 July, 7, 11, 17 August 2023

Date of orders:

27 October 2023

Decision date:

10 November 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See [118]-[119]

Catchwords:

HIGH RISK OFFENDERS — Terrorism (High Risk Offenders) Act 2017 (NSW) — whether applicant poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a continuing detention — no dispute regarding alternative of an extended supervision order — risks posed are unacceptable if he is not supervised under an extended supervision order rather than a continuing detention order — not persuaded that anything beyond containment is to be gained from a CDO — consideration of conditions

HIGH RISK OFFENDERS — applicant associates with Aryan Terror Brigade, white supremacist and Nazism ideologies — adoption of Germanic persona — searches

HIGH RISK OFFENDERS — index offending — manufacturing of homemade slam fire guns — possession of illegal weapons — child abuse material offending — grooming — soliciting child pornography

HIGH RISK OFFENDERS — consideration of VERA-2R — consideration of Corner Report — experts did not apply VERA-2R as a predictive tool but as an aid to their clinical assessment — not satisfied that the Corner Report debunks VERA-2R on the evidence in this matter

Legislation Cited:

Terrorism (High Risk Offenders) Act 2017 (NSW) ss 20, 29, 34, 37, 39, 42, 59A, 59C

Criminal Code Act 1995 (Cth)

Cases Cited:

Browne v Dunn (1893) 6 R 67

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076

State of New South Wales v Holt [2022] NSWSC 1684

State of New South Wales v Holt (No 2) [2023] NSWSC 1365

State of New South Wales v Holt (No 3) [2023] NSWSC 683

State of New South Wales v Holt (No 4) [2023] NSWSC 861

State of New South Wales v Holt (No 5) [2023] NSWSC 1361

State of New South Wales v Holt (No 6) [2023] NSWSC 1367

State of New South Wales v Holt (No 7) [2023] NSWSC 994

Texts Cited:

E Corner and H Taylor, Testing the Reliability, Validity, and Equity of Terrorism Risk Assessment Instruments (ANU Centre for Social Research and Methods, 2022)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Michael James Holt (Defendant)

Representation:

Counsel:
P McDonald SC with K Curry (Plaintiff)
P Coady (Defendant)

Solicitors:
Crown Solicitor’s Office (NSW) (Plaintiff)
Streeton Lawyers (Defendant)

File Number(s):

2021/193502

Publication restriction:

Non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) made on 14 December 2023

JUDGMENT

1. By summons filed on 6 July 2021 under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“THRO”) the State of New South Wales (“the State”) seeks a continuing detention order (“CDO”) against the defendant (Mr Holt) of 1 year’s duration followed by an extended supervision order (“ESO”) of 3 years’ duration. In the alternative, an ESO of 3 years duration is sought. All references to legislation in this judgment are references to THRO unless otherwise specified.

2. After a six day hearing that followed a tortuous path, for reasons that need not be fully explained now as they are set out in my various interlocutory judgments, I reserved my decision on 17 August 2023. At that time, Mr Holt was subject to an interim detention order (“IDO”) imposed by N Adams J as long ago as 26 August 2021 (State of New South Wales v Holt (Preliminary) [2021] NSWSC 1076) which had been suspended by dint of s 42(2) while Mr Holt was serving his then current sentences and sentences later imposed on him on 27 September 2021 for further offending committed in custody on 16 March 2021. This latter sentence did not expire until 31 July 2023 (see my judgment State of New South Wales v Holt [2022] NSWSC 1684). By consent I continued these interim orders from time to time as permitted by s 42(3) until 30 October 2023. On 27 October 2023 I pronounced an ESO of 3 years duration under s 39(1)(a) subjecting Mr Holt to conditions I specified under s 29. I reserved my reasons which I now give.

History of the proceedings

3. I do not propose to give a full account of the long history of the matter in this Court. This is fully apparent from the various interlocutory decisions given which include not only the judgment of N Adams J and my judgment of 6 December 2022, but also the following judgments of mine: State of New South Wales v Holt (No 2) [2023] NSWSC 1365 (5 June 2023); State of New South Wales v Holt (No 3) [2023] NSWSC 683 (22 June 2023); State of New South Wales v Holt (No 4) [2023] NSWSC 861 (6 July 2023); State of New South Wales v Holt (No 5) [2023] NSWSC 1361 (6 July 2023); State of New South Wales v Holt (No 6) [2023] NSWSC 1367 (28 July 2023); and State of New South Wales v Holt (No 7) [2023] NSWSC 994 (11 August 2023).

Issues

4. No doubt as the issues had been fully elucidated by the careful and comprehensive judgment of N Adams J, when the matter came on for final hearing before me, originally on 6 December 2022, and again on 5 June 2023 (when it was again adjourned) the sole substantive issue in the case was whether a CDO should be made, it being accepted that “the appropriate order [was] to dismiss the application for a CDO and to impose a 3 year ESO” (Mr Holt’s written submissions filed 24 November 2022, p 2 [2]; Mr Holt’s further written submissions filed 23 May 2023, p 7 [17]).

5. There were two subsidiary issues which informed the question whether a CDO was the appropriate order. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx .

6. Judgment No 5 is concerned with the second subsidiary issue. This involves the admissibility of expert opinions going to the assessment of the risk of committing a serious terrorism offence posed by Mr Holt to the extent to which those opinions were informed by application of the Violence Extremism Risk Assessment – Version 2 Revised (“VERA-2R”). The essential argument in this regard was that the validity of VERA-2R was so undermined by the report of Dr Emily Corner and Dr Helen Taylor, Testing the Reliability, Validity and Equity of Terrorism Risk Assessment Instruments (ANU Centre for Social Research and Methods, 2022) (“Corner Report”) that opinions based upon VERA-2R were either not admissible or should be rejected as unreliable. It was submitted on Mr Holt’s behalf that this second issue undermined the expert opinion to the effect that his risk of committing a serious terrorism offence was unacceptable, unless he was kept in detention under a CDO of 1 year’s duration, making the ESO the only appropriate order open to the Court.

7. Mr Holt explicitly accepted, I infer for the reasons explained by N Adams J, that each of the conditions for making a CDO in s 34(1)(a)-(c) were satisfied other than s 34(1)(d). That condition is that he poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a CDO. On the other hand, as I have already made clear, he did accept that his risk of committing a serious terrorism offence was unacceptable if not kept under supervision: s 20(d). He accepted expressly that the evidence establishes to a high degree of probability that he presents an unacceptable risk within s 20(d) (Mr Holt’s written submissions filed 24 November 2022, p 1 [6]). As these reasons demonstrate, that concession was properly made.

Resolution

8. As my orders demonstrate, I was not persuaded to the statutory high degree of probability (s 34(1)(d)) that Mr Holt poses an unacceptable risk of committing a serious terrorism offence if not kept in detention under a CDO. My full reasons are explained by what follows. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

9. So far as the Corner Report is concerned, while I accepted it raised valid criticisms of VERA-2R, I did not form the view that it entirely debunked VERA-2R so as to render opinions informed by its application no expert opinion at all or so unreliable that they should be rejected out of hand as entitled to no weight.

Background

10. I am grateful to the legal representatives of the parties for reducing many of the primary facts in the matter to a Statement of Agreed Facts (Ex A.4); and a Supplementary Statement of Agreed Facts (Ex A.41). What follows under this heading is largely, but not solely, drawn from them.

11. Mr Holt was born in 1990 and is now aged 33 years. He was one of a sibship of four of his parents’ union, but his twin died either in infancy or childhood. He was the eldest survivor with a younger brother and a younger sister. He was raised in a prosocial environment and his parents were members of a fundamentalist Christian Church. They, however, separated when Mr Holt was aged 11, which upset him greatly with lasting effects. He now has four half siblings from the subsequent relationship of his parents.

12. He gave Dr Andrew Ellis, one of the court-appointed expert, a history of having been treated for Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder (“ADHD”) as a child. He was receiving medication for ADHD while in custody. Dr Ellis (First Report 3 October 2022, Ex B) proffered a provisional diagnosis of Autism Spectrum Disorder. He noted the medication for ADHD but regarded the available information as insufficient to confidently make the diagnosis, although he regarded it as an area of “clinical attention”. Dr Ellis also thought it “likely” that Mr Holt met the criteria for a Personality Disorder with paranoid and schizo-typal traits. Given his criminal history, to which I will return, Dr Ellis was of the view Mr Holt met the criteria for a Paraphilic Disorder, specifically Paedophilia or Hebephilia directed at pre-pubescent and youthful females. The disorder is not exclusive as Mr Holt expressed sexual attraction to adult females.

13. There was no doubt that Mr Holt has had, and continues to have, a deep-seated ideological association with far-right extremism (Dr Mario Peucker Reports 6 May 2021 and 18 August 2022, Exs A.8 and A.9). This takes the form of adherence to and advocacy for Neo-National Socialism. While Mr Holt tends to downplay it when interviewed by experts or law enforcement authorities, there is no doubt that his belief system extends to the belief in violent extremism as a means of achieving the despicable objectives of that hateful ideology. The evidence supporting that conclusion is fully set out in the Statement of Agreed Facts (Ex A.4). It is not necessary for me to fully summarise this material as it is not in issue. I will say, however, that Mr Holt’s belief and activities came to the attention of counter-terrorism law enforcement agencies monitoring social media from about February 2011. Mr Holt appeared to adopt a number of different personas with a Germanic ring to them, such as “Fredrich Holtz”.

14. Mr Holt operated a number of accounts on various platforms. Photographs posted by Mr Holt depict him wearing militaristic attire and displaying symbols associated with Nazism. These symbols included a swastika on a chain around his neck and a Totenkopf or ‘death’s head’ pinned to each collar. Another photograph depicts him wearing uniform-like attire with Schutzstaffel (“SS”) bolts visible on the shirt.

15. Mr Holt has a number of tattoos on his body associated with Nazism. He has “SS Runes” tattooed on his upper right arm, a Totenkopf tattoo on his right shoulder which Dr Peucker states is “a distinct type of skull and cross bones that is widely considered a neo-Nazi symbol” (Ex A.8, p 4). According to Dr Peucker, the symbol was officially used by the SS as a cap badge. Very prominently across the left side of his chest, Mr Holt has a very elaborate tattoo of an Iron Cross, a German military decoration.

16. The verbal content of Mr Holt’s Facebook postings is replete with references to “national socialism”, “final victory” and “total victory”. There is express and vile antisemitism, xenophobia and white supremacy expressed. The expressions, “Heil Hitler” and “Seig Heil” are used. He has also employed what is referred to as code 88, being a code for “Heil Hitler”; “H” being the eighth letter in the alphabet.

17. There are also apparent statements of intent to commit violent crime. These include threats to shoot police, statements of intent to undertake armed robbery and fantasies about “shooting up the school”. He undertook searches in relation to American school mass shootings and expressed admiration for the Norwegian racist mass killer, Anders Behring Breivik.

18. While there is little evidence demonstrating that Mr Holt is an ongoing, active participant in any identified neo-Nazi, white supremacist or right-wing group. There is some evidence of an association with a person named Ricky White, both before and after Mr Holt entered custody. Mr White was convicted of antisemitic hate crimes and setting fire to a church. From 14 December 2018, he was subject to an ESO under THRO for a period of two years.

19. While in custody a number of significant writings and drawings have been seized by corrections officers from various cells occupied by Mr Holt. These include a careful drawing of SS runes over a swastika and drawings of firearms - mainly handguns which appear to approximate German Lugers. There are also many skilfully executed cartoon like drawings which maybe self-portraits of Mr Holt in militaristic uniform including that displaying SS runes and swastika and in lederhosen. Various Nazi symbols are depicted. In one drawing, the slogan, “Aryan Lives Matter” appears. Other statements include references in German translated as, “Once I’m out of here, I will take revenge, nothing else to do”. There are references to “final war” and “racial holy war”. The material also includes the statements: “Implement Reich laws” and “Restoration of the entire Reich”. He has penned song lyrics with titles including “Salvation of the Swastika”, “Proud to be a Perverted Cadaver Eater”, “Brutal Death March to DIY Tyranny”, “Crimes Should be Committed” and “Give War a Chance”. The last title has a white supremacist theme. The chorus to “Crimes Should be Committed” refers to “our Gestapo courts” and “Cops crushed by our jackbooted thugs”.

Index offending

20. Mr Holt was twice interviewed by the Joint Counter-Terrorism Team on 14 September 2012 and 6 November 2012. When interviewed about the content of his social media posts, he denied any intent to physically harm anyone. He did not deny membership of a group styled “Aryan Terror Brigade” and admitted to being a white supremacist.

21. In 2015, New South Wales’ police received information that Mr Holt was manufacturing homemade firearms and weapons. Between July and September 2015, search warrants were executed at various premises with which Mr Holt had an association. At his grandfather’s home on 23 July 2015, replica firearms, a pair of handcuffs and various pipes and fittings were seized. On 9 September 2015, a search warrant was executed at the defendant’s room at a hotel in Ourimbah. A homemade “slam fire” gun which worked sometimes, a replica firearm, a repeating air pistol, prohibited weapons, drawings, and schematics relating to the manufacture of firearms and a spent twelve-gauge shotgun cartridge were seized.

22. On 10 September 2015, a search warrant was executed at the residence of Mr Holt’s mother. He was present at the time and was arrested and cautioned. Before going to the police station, he dressed himself in black clothing and donned a German military field cap which sported the SS Totenkopf cap badge.

23. At the police station, he allowed police to access his phone. Firearms and weapons were seized including 4 homemade slam fire guns, one of which was loaded with two twelve-gauge shotgun cartridges. The slam fire gun was in working order. Imitation and replica pistols, firearm parts, knuckledusters and live ammunition were all seized. The material was categorised into three groups, being materials for use in the manufacture of firearms and ammunition; imitation firearms; and homemade firearms, at least some of which were in reliable working order.

24. The execution of a fourth warrant on 25 November 2015 at other premises where Mr Holt had previously resided resulted in the seizure of knuckledusters marked with Nazi symbols, a knife with SS runes, a quantity of ammunition including 21 empty shotgun cartridges, metal items, wooden firearm handles and various electronic devices.

25. Slam fire guns are rudimentary, consisting of a sliding barrel which is pulled back against a fixed firing pin causing a cartridge to discharge. The guns do not utilise a trigger mechanism, they are capable of causing death or injury at close range, including injury to the user. A search of his electronic devices disclosed a number of song lyrics apparently composed by Mr Holt. Some of them were antisemitic, others were racist. One had the hook, “Gas the f*****ers like Adolph Hitler did”. Mr Holt was charged with four counts of serious firearm offences with a number of Form 1 offences to be taken into account, distributed variously across the counts on the indictment.

26. As a result of the search warrants, he was also charged with a number of child abuse material offences contrary to the Criminal Code Act 1995 (Cth), grooming offences, soliciting child pornography and transmitting indecent communications to a person under 16 years. He was sentenced in the District Court on 29 September 2017 by McLennan SC DCJ. For the firearms offending his Honour passed a sentence of 6 years commencing on the date of Mr Holt’s arrest on 10 September 2015 and expiring on 9 September 2021. A non-parole period of 3 years and 6 months duration expired on 9 March 2019. For the child sex offending, a sentence of 3 years and 6 months imprisonment commencing on 10 March 2019 and expiring on 9 September 2022 was imposed with a non-parole period of 12 months which expired on 9 March 2020.

27. N Adams J summarised the sentencing judge’s views at [64]-[68] of her judgment in terms with which I agree and which I gratefully adopt. I set them out as follows:

“[64] In his Honour’s remarks on sentence on 29 September 2017, McLennan SC DCJ did not express any conclusive views on the defendant’s risk of committing a serious terrorism offence but did note the following matters.

[65] Information obtained from the defendant’s phones was tendered at the proceedings on sentence. His text messages included the following statements: “I urge to kill so bad all the time because well I can’t get laid, I hate myself”, “I’ve had enough of this shit, I’m about to lose it, all these cunts need to be butchered”, “I need that Glock”, “I need a gun ASAP”, “And I’ll shoot them and probably die without a wife, I have no reason to do anything except that I want”, “then I kill until I die” and “I’m scared of what my recklessness and suicidal thoughts could lead to”. In an exchange two days prior to his arrest, the defendant said “my hate increases every day, my rage exponentially so… I always fantasise about mass homicide when I’m in crowds and crowded places… I dream of it all the time. I got kicked out of high school when I was your age for talking about shooting up the school.”

[66]  His Honour noted that these messages expressed a suicidal and homicidal ideation. His Honour described the defendant’s web history as revealing an “obsession with school shootings”. His Honour was satisfied beyond reasonable doubt that the offender had often talked about loading weapons into his vehicle and driving it to a public place where he would just “start shooting it up”.

[67]  His Honour further noted that the applicant had five slam fire guns in his possession and noted that while incapable of inflicting mass casualty, they could cause serious damage to a person at close range. His Honour also noted that the facts referred to the possible sale of a slam fire gun in January 2015, although his Honour noted that this was not suggestive of a “trade” in such weapons.

[68]  His Honour was unable to conclude that the defendant was unlikely to re-offend and did consider that he was “potentially a threat to the public safety of the community at large”. His Honour noted that he could not impose a disproportionate sentence by way of preventative detention. After considering the Commonwealth offences, his Honour concluded that:

The offender’s obsessions with sex, guns and death, points to a deeply disturbed and disturbing psychopathology. Only intensive psychotherapy over many years, in conjunction with pharmacological intervention, offers the prospect of stabilising this offender.”

28. As I have already said, as a result of a cell search on 16 March 2020, further child abuse material drawn by Mr Holt was seized and he was charged with additional offences on 5 May 2020. for which he was sentenced to an additional term of imprisonment of two years and ten months, with a non-parole period of one year and four months. The non-parole period expired on 30 September 2022. He was not released to parole because he was regarded as a post-sentence inmate and therefore not eligible for parole (see [2022] NSWSC 1684). The head sentence expired on 31 July 2023.

29. Mr Holt was also charged in Queensland on 21 August 2015 with possession of a knife and a knuckleduster. Given the intervention of the New South Wales offending, it appears that those charges have not progressed. Accordingly, the New South Wales offending (which includes some Commonwealth offences) to which I have referred are the totality of Mr Holt’s criminal record. It is well to observe that notwithstanding his previous interest in violence, including racist violence and his stated intent from time to time to engage in random or mass shootings, he does not have any offences involving the infliction of actual violence upon his record, notwithstanding his long-term adherence to an ideology of right-wing violent extremism.

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30. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

31. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

32. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

33. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

34. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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35. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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36. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

37. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

38. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

39. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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40. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

41. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

42. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

43. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

44. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

45. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

Absence of oral testimony from Mr Holt

46. Mr Holt did not give evidence. As these are civil proceedings, the State asked me to engage in the inferential reasoning process available under the principles discussed in Jones v Dunkel (1959) 101 CLR 298 xxxxxxxxxxxxxxxxxxx. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. Assuming a Jones v Dunkel inference to be available in proceedings, albeit civil in nature, where the liberty of the citizen is at stake, I would not draw any adverse inference from Mr Holt’s failure to give evidence for the reasons I have explained.

47. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

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50. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

51. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

52. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

53. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

54. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

55. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

VERA-2R and the Corner Report

56. I turn to consider whether the Corner report so undermines the validity of VERA–2R as to render opinions informed by its application unreliable. This is of some importance because Ms Katrina Czerkies, the senior psychologist who prepared the s 37(4)(b) risk assessment report, Dr Seidler, the other Court appointed expert and Dr Ellis all utilised VERA–2R in conducting their individual risk assessment. Ms Czerkies also utilised the Terrorist Radicalisation Assessment Protocol – 18 (TRAP-18), a structured professional judgment tool in her risk assessment. It too is referred to in the Corner Report (page 15 and page 27) but does not seem to receive the same scrutiny or criticism as VERA–2R.

57. It is important to bear in mind that the process is one of assessment of the present risk of future offending of a particular kind. Each expert acknowledges the limitations of the various tools employed. It is not scientifically possible to accurately predict whether an individual offender will or will not re-offend in a particular way (Czerkies Report p 16, working folder (WF) p 218). As Ms Czerkies said, “the best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk, and sound clinical analysis in formulation of how those present features might operate in the individual subject to the assessment”.

56. Ms Czerkies also acknowledged an important limitation in VERA–2R statistical or actuarial tools is that, fortunately for the community, the frequency of violent extremism or politically motivated violence is significantly less than ordinary crime (Czerkies Report, p 17). Indeed, she cited literature to support the proposition that the cohort of persons who engage in terrorist acts will never be large enough to amass the statistical power necessary for determining “the optimal quantitative combination of risk factor scores, or to generate a final estimate of risk that does not rely in substantial part on clinical judgment” (Czerkies Report p 17).

57. Ms Czerkies described the VERA-2R as a structured professional judgment tool. She regarded it as part of a broader multi-modal comprehensive assessment. It is not an actuarial tool. She cited literature suggesting it was useful in the case of persons of possible concern who had not previously committed terrorism-related offences as well as in the assessment of the risk of known violent extremists and terrorists offending again.

58. In her first report of 4 October 2022 (Ex C), Dr Katie Seidler, a clinical and forensic psychologist with post graduate qualifications in terrorism and security studies, described the VERA-2R and its limitations to the same substantial effect as Ms Czerkies. Dr Seidler too described it as “a structured professional judgment tool” ([154]). Dr Seidler considered TRAP-18 as less useful because “[it was] designed primarily to aid law enforcement personnel to consider the need to intervene in relation to the imminence of risk”([153]). Dr Seidler also said (at [156]):

“The VERA-2R has been criticised on a number of grounds, including on the basis of the suggestion that it is tautological at best and irrelevant at worst. As stated, this area is very much in its infancy and the sample on which prediction may be performed is extremely limited. Even so, when considered carefully within the context of a person’s history and functioning and taking the findings of the VERA-2R in conjunction with other risk assessment tools exploring other possible areas of offending, it is argued that a meaningful analysis of an individual’s possible risk can be determined, which has utility in understanding the various ways in which any identified risk can be managed and/or intervened in.”

61. In a letter dated 26 May 2023 (Working Folder, Vol 3) Dr Seidler referred expressly to the Corner report. She explained her understanding of the authors’ criticisms of VERA-2R were based on “the lack of a strong theoretical and empirical basis, as well as the factor that yielded poor inter-rater reliability and predictive validity”. Dr Seidler said the authors determined that VERA-2R “should not be used to predict future offending related to violent extremism or terrorism” (my emphasis). Although there was an acknowledgment (Corner Report p 152) by the authors that VERA-2R may “still have value for helping design risk formulations, management strategies and scenario planning”.

62. I understand the expression inter-rater reliability to relate to the capacity of an instrument to produce the same result in respect of the same individual regardless of the identity of the user. The criticism of VERA-2R is that in controlled studies carried out by the authors of the Corner Report there was an insufficient consistency of outcome in respect of the same problems set for resolution by different users.

63. The conclusions of the authors of the Corner Report emphasised by counsel for Mr Holt (written submission 23 May 2023 [4]) were that the absence of a strong theoretical and empirical basis for including relevant factors in the assessment approach mandated by VERA-2R, it is not reasonable to expect that VERA-2R is able to predict specified risk with anything other than chance (my emphasis). This has the consequence that the results produced are unlikely to be useful for risk management as any plan formulated is unlikely to be well-founded if the risk assessment is flawed, as I understand the contents of the report.

64. In a second letter dated 26 May 2023, (WF, Tab 33) Dr Seidler said she did not rely solely on VERA-2R; the utility of the report was not for predictive purposes, but to identify factors which might inform the assessment of the risk; she has utilised her own professional judgment; notwithstanding its limitations, she regarded VERA-2R as the tool most appropriate for use in a situation of violent extremism and she regarded the results as assisting the Court in conceptualising risk and considering management.

65. Dr Ellis utilised VERA-2R in his assessment as detailed in his first report of 11 October 2022 (Ex B). He also referred to TRAP-18. At the outset of his introduction of these matters (p 18) he pointed out that extremist–terrorist related violence is less studied than interpersonal violence because the phenomenon is comparatively rare and not readily amenable to academic review. He observed that terror related violence tends towards intended or targeted violence in contrast to impulsive or reactive interpersonal violence. He regarded TRAP-18 and VERA-2R as useful investigative templates (p 19).

66. Dr Ellis and Dr Seidler gave concurrent evidence on 5 July 2023. Dr Ellis emphasised he used VERA-2R as “a template, rather than a tool as such” (16.30T). He considered the relevant risk factors identified by VERA-2R and considered whether or not they were relevant to Mr Holt’s case. He used the results it yielded alongside other methods including a structured professional judgement tool for violence generally. Primarily he relied upon his own clinical assessment. He regarded VERA-2R as an aide memoire to ensure he was covering relevant areas (16.40T).

67. Dr Seidler’s evidence was to a similar effect. She referred to VERA-2R as a “heuristic” and a means of filtering information. She said, “It’s not the be all and end all, but a way of understanding and filtering information” (17.10T). Both Court-appointed experts described the criticisms raised in the Corner Report in a manner which clearly demonstrated they understood them. Accepting the force of the criticism, Dr Ellis did not find it necessary to change his opinion. He said (20.25T):

“I didn’t use it in a way that it was considered a predictive tool to sort of label a person high risk or low risk of the outcome and … I was aware that there were no published studies of its predicted validity, so I was aware that it was not a tool that had established predictive validity, so I didn’t utilise it in that way.”

He was not aware of the inter-rater reliability issue, but that issue didn’t change his opinion. It was not of concern to him that he “might have rated things differently to someone else” (20.35T). He was not using it to predict an outcome. Dr Seidler agreed with Dr Ellis. The Corner Report did not cause her to alter her opinion. Because of its limitations as previously discussed, Dr Ellis had some misgivings about the VERA-2R.

68. Dr Seidler did not agree that VERA-2R was an actuarial tool (31.10T). Such measures are tied to statistics. Actuarial tools are distinguished from professional judgment tools in as much as actuarial tools provide a predictive recidivism rating (31.20 - .23T). VERA-2R like other professional judgment tools focuses upon dynamic factors (31.35T). Both Dr Seidler and Dr Ellis accepted, indeed pointed out, that there is no actuarial risk assessment tool available because there is not a statistical database available for violent extremism or serious terrorism offences (32.10 - .41T).

69. Dr Seidler did not accept that her risk assessment was based entirely on the application of VERA-2R. She relied upon her observations, experience in the area, her understanding of the relevant issues filtered through VERA-2R to come up with an assessment based upon her clinical opinion (35.30 -.35T). She was prepared to accept that VERA-2R protocol was the predominant method used to assess Mr Holt’s future risk of extremist violence (39.25T).

70. Both Dr Ellis (39.45T) and Dr Seidler (40.40T) were of the view that the purpose of risk assessment was to identify risks that may never materialise for the purpose of managing them. Dr Seidler said “the ultimate utility of risk assessment is risk management”.

Conclusions about the Corner Report

71. Obviously, I have not heard from the authors of the Corner Report directly nor have they considered Mr Holt’s case in light of their own conclusions. My impression is that both Dr Ellis and Dr Seidler accepted the validity of the criticisms raised in the Corner Report, but neither was of the view that those criticisms deprived it of utility as a professional judgment template or structure for filtering and assessing relevant risk factors in Mr Holt’s case which would inform, but not dictate, the assessment of any risk posed by him of committing a serious terrorism offence. Neither expert regarded VERA-2R as predictive of outcomes. Both accepted that there was no reliable actuarial and statistical tool available because fortunately the database of violent extremist or terrorist offenders is too small worldwide to support such a tool. Both adhered to their view of VERA-2R’s utility if one kept its limitations or shortcomings in mind.

72. I am satisfied that in the end the conclusions of Ms Czerkies, Dr Seidler and Dr Ellis were based upon their own professional judgment even if that judgment was informed by their use of VERA-2R. On the evidence before me, I am not satisfied that the Corner Report debunks VERA-2R. Valid as its criticisms may be, I am not of the view that opinions informed by the application of VERA-2R are rendered so unreliable as to be rejected or entitled to no or little weight.

73. It should also be borne in mind that s 37(4)(b) mandates the provision of a risk assessment report by a relevantly qualified expert as an essential requirement of an application. Ms Czerkies’s report is necessarily admissible for this purpose. Such a report is also a mandatory consideration under s 39(3). Moreover, s 39(3)(c) requires the Court to consider any assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a serious terrorism offence. An assessment based upon VERA-2R, or informed by it, is relevant and admissible by dint of that provision. Whether it is accepted or not is a different matter.

Section 39 Considerations

74. I bear firmly in mind s 39(2) that provides in determining whether or not to make a CDO or ESO, the safety of the community must be the paramount consideration of the Court.

The reports of the Court appointed experts

75. Given the narrowness of the issue, it is not necessary for me to analyse the detailed reports of Dr Ellis and Dr Seidler in great detail. I think it sufficient that I focus on the issue which is whether the risk which Mr Holt undoubtedly poses is so unacceptable that only a CDO is appropriate.

Dr Ellis

76. In his first report, including by reference to VERA-2R, Dr Ellis pointed out that Mr Holt had adopted a melange of conservative Christian, Nazi, libertarian sovereign citizen, misogynist and white supremacist views of the world. Dr Ellis also pointed out that an important factor is Mr Holt’s “co-occurring paedophilic sexual interest”. He said that there is some literature suggesting that violent extremism and this sexual deviation can co-occur (Ellis first report, p 21). Notwithstanding the diagnoses that Dr Ellis proffered, he also points out that Mr Holt has not been diagnosed as suffering from a major mental illness.

77. Dr Ellis expressed his conclusions about risk in the following terms:

“In considering the clinical evaluation and the framework of tools drawn from the broader literature on extremist violence, Mr Holt displays a clinically significant number of the characteristics associated with terrorist related violence and offences. His personality style is one that focuses on grievances and threat, making it difficult to trust others implicitly, and renders impulsive violence in response to stress more likely. He holds rigid and bombastic ideas about his role in the world. The use of the veneer of ideology to justify his angry response to a world that rejected him when he was young likely covers his violent retributive urges with some acceptability. He holds significant grievance towards the State for his situation. He would most likely be at risk of extremist violence, starting with threats or use of internet posts moving to acquiring weapons in a self-defensive posture at first. The risk factors at present relate to his personality disorder, social immaturity, social isolation, seeking to gain approval from fringe groups, abnormal sexual interest and associated inability to form an idealised sexual and personal identity and subsequent preoccupation with violent material”.

Although Dr Ellis refers to impulsive reactive violence as opposed to targeted or planned violence, I am of the view that this is evidence which supports the conclusion to a high degree of probability that Mr Holt’s risk of committing a serious terrorism offence is unacceptable.

78. So far as risk management is concerned, Dr Ellis expressed the view that there is no evidence that prolonged incarceration reduces the risk of recidivism on release. He would only recommend a CDO on a temporary basis to secure appropriate accommodation and services. Dr Ellis is of the view that strict conditions would be required to manage the risk. He points out that personality disorders are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. The diagnosed psychiatric conditions contribute to the need for close supervision. Dr Ellis was in favour of supervision for the maximum period of 3 years.

79. In his supplementary reports of 3 June and 3 July 2023, having considered the xxxxxxxxxxxxxx Dr Ellis explained why their was no change to his opinion that an ESO was the appropriate risk management approach. However, in oral testimony, Dr Ellis said xxxxxxxxxxxxxxxxxx affected his opinion about whether a CDO was appropriate. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.

Dr Seidler

80. In her report of 22 October 2022, Dr Seidler expressed the view “overall, on the basis of the VERA-2R … Mr Holt poses a high risk in engaging in an act of violent extremism in the future” (p 55 [163]). She acknowledged the absence of a criminal history for violence and the absence of evidence of engagement “in behaviour that would be considered violent extremism”. However, he has threatened acts of extremism on many occasions and his manufacture and stock piling of weapons could be considered acts of preparation, at least in her view. His ideology supports a military form of fascist government promoting the use of violence to particular ends. Dr Seidler points out that his ideology has shaped Mr Holt’s actions, manner of relating, dress, speech and relationships over many years.

81. Notwithstanding Mr Holt’s disavowal of any intention to engage in violent extremism, Dr Seidler refers to his promotion of “a violent, militant and extreme ideology”. She identified a propensity for violent action. She regarded the barriers that restrained Mr Holt from violent action as “fragile at best”. There remained a risk he could engage in an act of violent extremism or terror that would reach the threshold to be considered a serious terrorist offence.

82. Dr Seidler regarded Mr Holt’s ideology as the most significant contributor to his risk. He has a pervasive sense of anger, hatred and resentment which fuels his violent ideation. His interests in art and music are fuelled by his ideology and his ongoing pre-occupation and fascination with violence and violent sex. His longstanding animosity to law enforcement officials fuels his sense of grievance which is related to anger and hatred.

83. Dr Seidler was not of the view that Mr Holt was manageable in the community even under a strict ESO. However, further time in custody is unlikely to reduce his risk to an acceptable level. It would be necessary for Mr Holt to “buy in” to the idea that he must manage himself, for supervision in the community to be workable.

84. In her oral evidence, Dr Seidler made clear that Mr Holt should be managed in custody under a CDO. However, she did not think that a CDO “in and of itself” was capable of managing Mr Holt’s risk (51.1T). It really required Mr Holt to be prepared to engage (“buy in”) with supervision and with such programs as may be available to begin to manage his own risk.

Section 39(3)(b)(c) – Risk assessment report

85. Ms Czerkies provided two reports. Her first report is dated 1 March 2021 and a second, supplementary report is dated 5 April 2023. Mr Holt declined to be interviewed for Ms Czerkies’ first report and she assumed his attitude would remain the same at the time of the preparation of her second report which was well after the commencement of these legal proceedings in any event. In both reports she utilised a number of different assessment tools in a desk top format involving a detailed file review. Ms Czerkies also gave oral evidence on 6 July 2023. In her oral evidence, she described taking a structured professional judgment approach to risk assessment using a combination of actuarial and unstructured clinical methods to make the assessment. Mr Coady objected to supplementary oral evidence being given which went beyond the confines of the reports which had been served invoking rule 31.28(4) Uniform Civil Procedure Rules 2005 (NSW), which objection I upheld. Specifically, I disallowed any questions relating to the Corner Report and its effect upon the opinions expressed by Ms Czerkies ([2022] NSWSC 161).

86. Given the significance of Mr Holt’s willingness to participate in treatment in the community, a number of questions were asked of Ms Czerkies by way of cross-examination about Mr Holt’s preparedness to participate in the Proactive Assessment and Intervention Services (PRAXIS). The program is a multi-disciplinary one. The main aim is to assist individuals to build resilience, deradicalize and reintegrate into the community (70.10 - .30T). It is not a fixed program over a definite period of time. Ms Czerkies said “fundamentally, we can only work with people who are in the community under the management of Corrective Services NSW” (70.44T). It is a voluntary, consensual service and the person under supervision can withdraw at any time. The members of the PRAXIS team could also liaise with NDIS service providers if Mr Holt consented (72.5T). I formed the impression from her evidence PRAXIS was a wholistic program directed to community reintegration.

87. In re-examination Ms Czerkies confirmed that in her capacity as the chief psychologist she understood that Mr Holt had now “re-engaged with PRAXIS” (74.40T).

88. In her supplementary report, Ms Czerkies re-applied the following risk assessment tools, most of which are relevant to general offending:

• The Violence Risk Scale (VRS);

• The Historical Clinical Risk Management – 20 Version 3 (HCR-20 V3);

• The STATIC-99R, an actuarial risk assessment test relevant to sexual reoffending;

• The STABLE-2007 also relevant to sexual offending, but relating to the identification of dynamic risk factors;

• The VERA-2R; and

• TRAP-18.

In her report she acknowledged the limitations inherent in the application of these tools. I am bearing in mind that I am assessing the risk of a serious terrorism offence. However, the violent and sexual offending outcomes produced results indicating a high risk in terms of sexual recidivism and violence with a moderate loading of historical risk factors and a high loading of modifiable risk factors into the future (my emphasis). HCR-20 V3 were adopted by Ms Czerkies from Dr Ellis’s report. So far as violent extremism is concerned, Ms Czerkies assessed a High risk warranting a high level of intervention, ongoing monitoring and case management. Ms Czerkies had access to the opinions of the Court appointed experts with whom she essentially agreed. She did not express an opinion in relation to whether a CDO or ESO was appropriate to the management of Mr Holt’s risk.

89. Although she recorded in her supplementary report that Mr Holt was resistant to engaging with further rehabilitation programs, that situation had changed, as I have stated, by the time she gave oral evidence.

Section 39(3)(d) - Risk management report

90. The State relies upon two risk management reports, the first is the report of Community Corrections Officer Kimberley Rambaud dated 7 July 2021. The second is by Detective Senior Constable Robert Palmer dated 8 July 2021. It is apparent, of course, that both of these reports are quite dated having regard to the history of the matter to which I have already referred.

91. It must be said that Ms Rambaud was quite pessimistic, expressing the reservation that the success of her plan relied upon the active engagement of Mr Holt and his willingness to comply with the conditions imposed by the Court. This is reminiscent of Dr Seidler’s “buy in”. The plan she proposed is very stringent and accords with the conditions sought by the State, as to which see below. However, it remains that notwithstanding her reservations and qualifications, even with his particular and challenging risk profile, Mr Holt can be managed in the community if he engages. I bear in mind non-compliance with the conditions of supervision is a serious indictable offence carrying a maximum penalty of five years imprisonment.

92. DSC Parker is assigned to the High Risk Terrorist Offenders Unit, Counter Terrorism and Special Tactics Command (HRTO). At the time of the completion of his report on 6 July 2021, he was the officer in charge assigned to Mr Holt. He had not interviewed Mr Holt for the purpose of his report. Having referred to various matters including Mr Holt’s extreme right-wing ideology, the grievances he harbours, his antiauthoritarianism - at least in the context of the current democratic government - his connections with likeminded persons, his development of extremist material, his prior expression of intentions to act including to perpetrate public mass shootings, and his access to firearms, DSC Parker was of the view that Mr Holt’s risk is so significant that it could only be managed through the implementation of a CDO.

93. If contrary to his opinion an ESO is imposed, he proposed a suite of stringent conditions which accord with those propounded by the State.

Section 39(3)(e) - Prescribed terrorism intelligence agency report

94. No prescribed terrorism intelligence agency report has been tendered in the present proceedings.

Section 39(3)(f) - Engagement in treatment or rehabilitation programs

95. Mr Holt consented to a referral to the PRISM course on 24 July 2019. PRISM was referred to by Ms Czerkies in her evidence and is a custody-based version of PRAXIS. It is suitable for offenders identified as promoting or being at risk of radicalisation or violent extremism.

96. Mr Holt continued to participate in the program from July 2019 until he voluntarily took a break on 24 August 2021. As I understand it, participation in this program is voluntary. He re-engaged on 20 September 2021 but discontinued in October 2021. It seems that his initial involvement was quite intensive, and his engagement remained consistent in terms of his attendance through to August 2021. It seems that he was not responsive to the content of the course and was never assessed as moving beyond what is referred to as the “pre-contemplation” stage of change. Improvement was noted from time to time, but generally he remained “ambivalent to his engagement with the prison service”. He told Dr Seidler in October 2021 that he found the program to be a waste of time and what he said was being used against him. It cannot be said that he failed to engage but perhaps his involvement was less than optimal, to say the least. He has engaged in EQUIPS, although he gained little insight. He has completed other courses and undertaken core skills and education courses while in custody. He was found suitable to engage in the High Intensity Sex Offenders Program (“HISOP”) in January 2018, however, the referral had not progressed. He explained to Dr Seidler that he was against anyone coming from a “prudish position” and he felt involvement in the course would make him antagonistic to the therapists. I interpolate that Dr Ellis did not regard involvement in HISOP as being a reason to keep Mr Holt in custody under a CDO.

Section 39(3)(g) - Options to reduce the likelihood of re-offending

97. The State submits that if he remains in custody Mr Holt could re-engage in PRISM and have access to countering violent extremism (“CVE”) programs. In the community, PRAXIS is available to him as well as other CVE programs. As I have already recorded the evidence is that he has now re-engaged with PRAXIS while he was in custody and doubtless will continue that engagement in the community.

Section 39(3)(h) and (i) – Likelihood of compliance with ESO

98. Mr Holt has not had the opportunity to be on parole in the community and therefore has not established any track record in relation to supervision whilst on conditional release. Notwithstanding further offending in custody by producing child abuse material, he has generally been compliant with prison discipline. His only misconduct was a failure to attend muster as long ago as 14 July 2018.

99. As the State point out, Mr Holt’s rigid adherence to his right-wing extremism raises questions about his compliance if released under supervision. He appears to have a belief in the establishment of a Fourth Reich, a disregard for the democratic values enshrined in our constitution and the rule of law and right-wing racial beliefs which are inconsistent with the community’s commitment to multiculturism.

100. On the other hand, he attempts to assure persons in authority and the Court appointed experts that notwithstanding his statements from time to time he has no intention of engaging in anything which could be regarded as serious terrorism offending. Doubtless his release under supervision will present challenges of management for Corrective Services and others and challenges of compliance for Mr Holt. However, his good record in custody and his engagement with most courses made available to him, even if superficially, suggest to me that he will attempt to comply with the conditions of his supervision.

Section 39(3)(j), (k) and (l)

101. I have dealt with these considerations fully above. His commitment to his right-wing ideology is rigid and longstanding and will not be easily displaced, if at all. I should also add that he seems to be an adherent of a marginal religious sect which identifies as Christian, but really appears to be an extension of his right-wing political ideology.

Assessment of the risk of committing a serious terrorism offence

102. This is not really in issue, as I have said. But I am satisfied to a high degree of probability that Mr Holt poses an unacceptable risk of committing a serious terrorism offence if not kept under an ESO. The origins of his risk are his longstanding adherence to his ideology, his resistance to full engagement in CVE programs, his interest in firearms and his ability to fabricate firearms from rudimentary materials at home. Sourcing ammunition may be a greater difficulty.

103. I am however, of the view, notwithstanding the pessimism of Ms Rambaud and DSC Parker, the very stringent conditions which I propose to impose are sufficient to manage the risk that he poses in the community. I note also, which is relevant to s 39(3)(m), that it is a supplementary agreed fact that Mr Holt has been accepted into the Community Offender’s Support Program at the Integration Support Centre which will give him stable accommodation and very close supervision, at least initially, after his release. It is also a supplementary agreed fact that Mr Holt will likely receive additional support in the community under the National Disability Insurance Scheme. This ought to assist him with his mental health disorders which otherwise would feed into his risk.

104. Although his relationship with his mother has not always been sufficient to operate in a protective manner, so far as his risk is concerned she is definitely a prosocial influence in his life, which in my view will assist to some extent in him complying with supervision.

105. I accept that the evidence of Dr Ellis and Dr Seidler is to the effect that a CDO for a period of time may be necessary to manage the risk. Dr Seidler was always of this view and her views have been strengthened by her understanding of xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Dr Ellis, on the other hand, only expressed the view that a CDO may be necessary because of xxxxxxxxxxxxxxxxxxxxxx and even then only in oral testimony; and not when he was twice asked to consider that material before giving evidence.

106. For the reasons I have already given, I am not satisfied that xxxxxxxxxx xxxxxxxxxxxxxx changes the nature of the risk that Mr Holt poses. Xxxxxxxxxxx. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. While it is difficult to be optimistic that engagement in PRAXIS and related CVE programs will disabuse Mr Holt of his adherence to his ideology, they will be protective as he will need to remain engaged in supervision to maintain his liberty, even if participation in PRAXIS is purely voluntary.

107. To the extent to which there is a difference of opinion between Dr Ellis and Dr Seidler as to the appropriate form of management. I favour Dr Ellis’s view. It seems to me that stable accommodation has been found and an appropriate multidisciplinary rehabilitation program is available which Mr Holt has agreed to participate in. There is nothing to be gained from a CDO other than containment, as Dr Seidler acknowledges. Even Dr Seidler accepts Mr Holt must be released into the community under supervision sooner or later. I am of the view that continued detention could well be counterproductive and operate to increase rather than manage the risk. I am not persuaded that anything beyond containment is to be gained from a CDO. Having regard to my judgment about xxxxxxxxxxxx and the significance of it, I am not persuaded containment is justified. I have come to the conclusion that the correct decision is that the risk is unacceptable unless Mr Holt is kept under an ESO. Were it a matter of discretion, I would exercise my discretion under s 39(1) to impose an ESO rather than a CDO, having regard to the stringent conditions proposed.

Conditions

108. As I have decided that the risks posed by Mr Holt of committing a serious terrorist offence is unacceptable if he is not supervised under an ESO rather than if not kept in detention under a CDO, it is necessary for me to make an order directing Mr Holt to comply with such conditions as I consider appropriate for the purpose of promoting community safety by managing the risk that Mr Holt presents, bearing in mind his general right to be at liberty following the expiration of the sentences lawfully passed upon him for the index and other offending. The Court’s power is prescribed by s 29. I record that my understanding of s 29(1) creates a presumption that certain conditions will be imposed unless I order “differently”.

109. I have been greatly assisted in this by the agreement reached by the experienced counsel on both sides of the record as to the appropriate conditions (supplementary WF, Tab 42). Of the 57 detailed conditions sought by the State if I determined the application by making an ESO, the form of all but 2 have been agreed. Those conditions are only narrowly disputed. They are condition 18 relating to place and travel restrictions and condition 28 relating to Mr Holt associating with persons who he knows or should know are consuming or under the influence of illegal drugs or alcohol.

Condition 18

110. The gravamen of the dispute is whether the power of his supervisor referred to as the enforcement officer, who may be a corrective services officer or police officer, to restrict the places Mr Holt may frequent, by direction, should be conditioned upon the officer’s belief on reasonable grounds that attendance at the place will increase Mr Holt’s risk of committing a serious offence or of failing to comply with another condition imposed.

111. Mr Holt submits that without the qualification he proposes, the power to specify places he must not frequent is at large, imposing an unreasonable infringement upon his liberty. He points out that other conditions, specifically the schedule of movements, and electronic monitoring working in combination, already impose a very significant restriction upon his freedom of movement. A reasonable grounds requirement, it was submitted, was a “reasonable fetter” on the enforcement officer’s power (17 August 2023, 23.11T). I am not persuaded that I should accede to Mr Holt’s submission. I do not accept that condition 18 is “at large”. It forms part of a broad and specific suite of conditions. It does not stand alone. It must be read in the context of all of the conditions as a whole. The powers of the enforcement officer may be exercised neither capriciously, arbitrarily nor for any improper purpose. They may only be exercised to advance the purpose of Mr Holt’s lawful supervision.

112. Imposing a “belief on reasonable grounds” qualification on the power has an artificiality about it. I fully appreciate that breach of a condition may involve criminal responsibility carrying a maximum penalty of imprisonment for 5 years. However, whether or not the officer had a belief on reasonable grounds is a matter that can only be determined if a question of breach arises. It does not assist in a practical way either the enforcement officer in his or her understanding of the powers conferred or Mr Holt’s appreciation of whether a direction or command is lawful. At worst it is likely to give rise to arid debate in the event of a disagreement about whether or not there are reasonable grounds for the direction. I am not persuaded that the proposed amendment is necessary.

Condition 28

113. Mr Holt proposes 2 amendments to condition 28. First, he submits that the condition should be amended to limit it to association with people “who he knows or should know” are consuming illegal drugs or alcohol. The State is prepared to accept a like restriction but contends for “knows or reasonably ought to know or suspect”.

114. Mr Holt also submits that his mother should be excluded from this condition. He argues that his mother is shown by the evidence to be a very sensible and mature person who is a prosocial influence upon Mr Holt. He gives the example that he should not be precluded from attending his mother’s home for lunch or dinner or some other social activity simply because his mother may wish to consume some wine with her meal. He makes the point that one is consuming alcohol upon the first sip and may be under its influence after the consumption of a relatively small amount.

115. The State relies upon the consideration that obviously were Mr Holt to associate with persons consuming or under the influence of alcohol or illicit drugs, he may be tempted to partake himself in the disinhibiting effects of intoxicating substances which could well enhance his risk of committing a serious terrorism offence of some type. It was argued that therefore one need not cast any aspersion upon Mr Holt’s mother by saying that the same temptation may arise at her home if she were consuming alcohol. It is to be remembered that he has had alcohol abuse issues in the past.

116. I accept that Mr Holt told Dr Ellis (first report 3 October 2022, p 14, Ex B) that he would comply with the terms of an ESO and felt he could live without alcohol. However, Dr Ellis recorded a prior history of drinking to the point of blacking out and formed the view that Mr Holt suffered from an Alcohol Use Disorder having an impact on his behaviour and general function. Dr Seidler (first report 4 October 2022, p 63, Ex C) recorded that Mr Holt told him that the disinhibiting effects of alcohol have contributed to him being more actively “mouthing off” online than he might otherwise”. But having recorded that history, Dr Seidler observed that “substance abuse … does not appear to be a relevant risk issue in this case”.

117. I am of the view that, notwithstanding Dr Seidler’s opinion, abstinence conditions including a prohibition on association with persons consuming or under the influence of intoxicating substances is an appropriate condition. But I agree that there is no reason why it should apply to his mother. Indeed, extending the condition to a prohibition on associating with his mother, if she happens to be consuming a glass of wine, to my mind is a wholly unreasonable limitation on Mr Holt’s right to fraternise with his family and would be an unreasonable intrusion by the State into his family life. I should also say that I am well satisfied that Mr Holt’s mother is a stabilising positive influence in his life (See OIMS entry, 25 November 22). The author noted “[Mr Holt’s mother] presented as a well-balanced ethical person who acknowledged [Mr Holt’s] behavioural problems”. So much has been observed by corrections officers during their interaction with her while Mr Holt has been in custody.

Orders

118. These are the reasons why I made an ESO on 27 October 2023.

119. I make the following additional orders:

1. These reasons may be published to the legal representatives of the parties xxxxxxxxx Under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW) on the grounds stated in s 8(1)xx, the publication of these orders is otherwise restricted until further order. These reasons may be published on New South Wales Case Law Restricted Database.

2. For abundant caution extend previous orders made under Court Suppression and Non-Publication Orders Act 2010 (NSW) until further order.

3. Direct the legal representatives of the parties to confer concerning the publication of these reasons and all prior judgments of mine as referred to in paragraph 3 of these reasons to consider the extent to which they may be published on New South Wales Caselaw having regard to s 8(1) xx of the aforementioned Act. In the event of agreement, a copy of each judgment with agreed redactions may be forwarded to my Chambers for my approval by 11 December 2023 with an appropriate form of short minute of order. In default of agreement each party to lodge the redacted versions for which they contend with a short submission justifying those redactions by the same date.

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Amendments

21 December 2023 - Non-publication order lifted and replaced with non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) made on 14 December 2023

Decision last updated: 21 December 2023