State of New South Wales v Ibrahim (Final)

[2021] NSWSC 793

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Ibrahim (Final) [2021] NSWSC 793

Hearing dates:

26 April and 14 May 2021; 17 and 18 May 2021 (written submissions)

Date of orders:

20 May 2021

Decision date:

30 June 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court confirms its orders of 20 May 2021.

Catchwords:

CIVIL – final hearing – application for extended supervision order – Terrorism (High Risk Offenders) Act 2017 (NSW) – orders – reasons for decision – preconditions – whether defendant convicted NSW terrorism activity offender – language used by defendant – advocating support – terrorist act – violent extremism – threat of violence – promote person, group of persons or organisation or ideology – support terrorist act of violent extremism – mental state and delusions – personal views – whether the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision during the period of extended supervision order – expert opinion of risk – mental illness – risk of relapse – susceptibility to influence – criminal history – parole and conditional liberty – approach to treatment – family support – community treatment order – duration – conditions – supervision movements and reporting – financial oversight – electronic monitoring, drugs and alcohol – counselling and medical treatments, associations – identity

Legislation Cited:

Community Protection Legislation Amendment Bill 2018 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code (Terrorist Organisation—Al-Qa’ida) Regulations 2019 (Cth)

Criminal Code (Terrorist Organisation—Islamic State) Regulations 2020 (Cth)

Mental Health Act 2007 (NSW)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Uniform Civil Procedure Rules2005 (NSW)

Cases Cited:

AAPT v Cable & Wireless Optus (1999) 32 ACSR 63; [1999] NSWSC 509

AttorneyGeneral for New South Wales v Tillman [2007] NSWCA 119

Attorney-General for New South Wales v Riley (Final) [2019] NSWSC 1782

Australian Cement v Adelaide Brighton [2001] NSWSC 645

Chapman v Chapman [2007] NSWSC 1109

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

First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261

Hrdavec v State of New South Wales [2018] NSWSC 1081

Kammv State of New South Wales (No 4) (2017) 345 ALR 669; [2017] NSWCA 189

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

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

R v Ibrahim (Court of Criminal Appeal (NSW), Sully J and Bell AJ, 4 September 1996, unrep)

R v Lodhi [2006] NSWSC 584

R v Mallah [2005] NSWSC 317

State New South Wales v Wilson (Preliminary) [2017] NSWSC 1367

State of New South Wales v Alam [2020] NSWSC 295

State of New South Wales v Ali [2010] NSWSC 1045

State of New South Wales v BP (No 2) [2019] NSWSC 806

State of New South Wales v BP (Preliminary) [2019] NSWSC 699

State of New South Wales v Bugmy [2017] NSWSC 855

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

State of New South Wales v Church (Preliminary) [2021] NSWSC 246

State of New South Wales v Davis (Preliminary) [2020] NSWSC 754

State of New South Wales v Dunn [2019] NSWSC 426

State of New South Wales v Dunn(a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008

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

State of New South Wales v Farringdon [2018] NSWSC 874

State of New South Wales v Fisk [2013] NSWSC 364

State of New South Wales v Haider [2020] NSWSC 38

State of New South Wales v Naaman (Final) [2018] NSWSC 1635

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

State of NSW v Ceissman [2018] NSWSC 508

The State of New South Wales v Sharpe [2017] NSWSC 469

Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Monzor Ibrahim (Defendant)

Representation:

Counsel:
K Stern SC with A Zheng (Plaintiff)
P David (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Executive Legal (Defendant)

File Number(s):

2020/347972

REASONS FOR JUDGMENT

INTRODUCTION

1. By a summons filed on 8 December 2020, the State of New South Wales (“the State”) sought, as final orders, an extended supervision order (“ESO”) for a period of 3 years from the date of the making of any such order pursuant to ss 20, 25(1)(a) and 26(6) of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”) in respect of Mr Monzor Ibrahim.

2. The State also sought an order pursuant to s 29(1) of the THRO Act that
   Mr Ibrahim be directed to comply with the conditions set out in the Schedule to the summons (“the Schedule”) for the period of the ESO.

PROCEDURAL BACKGROUND

3. On 8 February 2021, after a preliminary hearing, R A Hulme J, made orders appointing two experts to conduct examinations of Mr Ibrahim and prepare reports of those examinations. His Honour ordered Mr Ibrahim be the subject of an interim supervision order (“ISO”) for a period of 28 days commencing on 21 February 2021. The ISO was renewed by Bellew J and the Court as presently constituted. The ISO was operative as at the day of this Court making a ruling on 20 May 2021.

4. The matter was listed for hearing on 26 April 2021 with a one day estimate. Notwithstanding that estimate, and the fact the ISO may not have been renewed beyond 21 May 2021, the matter was not concluded on that day and was listed for further hearing on 14 May 2021. On that day, the evidence was completed and senior counsel for the State, Ms K Stern SC, who appeared with Ms A Zheng of counsel, made short final oral submissions supplemented by an “Index of Evidence Relied upon by the State of New South Wales” (“the State’s Index Submissions”). The State also produced a document identifying and comparing the respective positions of the parties as to conditions attaching to the ESO, if an ESO was to be made (marked Ex 8). Counsel for Mr Ibrahim, Ms P David, elected to not make oral submissions but rather file further comprehensive written submissions incorporating intended oral submissions. This was followed by a further reply by the State (I will return to the course of written submissions below). The Court made orders on 20 May 2021.

5. By the final orders of the Court, the Court granted the State’s application for an ESO for a period of 3 years from the date of the making of the order and directed Mr Ibrahim to comply with the conditions set out in the Schedule as varied by the order of the Court. The Court indicated that reasons would be provided in due course.

6. These are the reasons for the making of those orders.

ISSUES IN THE PROCEEDING

The Predominant Issues

7. There were two issues that predominated the proceedings, namely:

1. Whether the Court could be satisfied that Mr Ibrahim was a “convicted NSW terrorism activity offender” for the purposes of s 20(c)(iii) of the THRO Act. In the course of the proceedings, this issue was distilled to a narrower issue, namely, whether the Court could be satisfied that
   Mr Ibrahim was a convicted NSW terrorism activity offender by virtue of s 10(1)(c)(i) or, further, by virtue of the deeming provision in
   s 10(1A)(a)(iii) (it was common ground that Mr Ibrahim was not caught by the provisions of s 10(1A)(a)(i) or (ii)) (“the first predominant issue”).

2. Whether the Court may be satisfied to a high degree of probability that Mr Ibrahim posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision under an ESO pursuant to s 20(d) of the THRO Act (“the second predominant issue”).

8. I will return to my consideration of the predominant issues, together with the further issues identified below, following a discussion of the relevant statutory regime below.

The Further Issues

9. There were three further issues identified by Mr Ibrahim.

10. Firstly, if the Court was satisfied that the preconditions to the making of an ESO were met, Mr Ibrahim posed the question as to whether the Court should exercise its discretion not to make such an order. Counsel for Mr Ibrahim contended, inter alia, that an ESO should not be made because it would represent a significant imposition on Mr Ibrahim’s liberty and was unjustifiably onerous or intrusive given the circumstances of Mr Ibrahim’s case, namely, that he was a mentally ill man with impaired psychosocial functioning.

11. It was also submitted that Mr Ibrahim was only a risk of committing a serious terrorism offence (and, in that respect, it was contended, not a high risk) when he is mentally unwell. Therefore, the appropriate means to manage
    Mr Ibrahim was through the maintenance and continuation of his psychiatric treatment and his “Community Mental Health Treatment team”. Reliance was placed on Mr Ibrahim being subject to an existing Community Treatment Order (“CTO”) at the time of the application before the Court. (That matter also operated with respect to the second predominant issue).

12. Secondly, Mr Ibrahim submitted that if an ESO was made, it should be no longer than one year, which period should include the period he had already been the subject of an ISO.

13. Thirdly, there was a dispute as to the conditions to be imposed for the purposes of s 29(1) of the THRO Act in the event that the Court exercised its discretion and made an ESO. That dispute originally extended to all conditions proposed in the Schedule. However, later the contest as to conditions to be imposed if an ESO was to be made were reduced. The respective positions of the parties, as earlier mentioned, were set out in a comparative table marked Ex 8.

SUBMISSIONS

14. The written submissions provided to the Court in relation to this matter were extensive, consisting of a total of 221 pages. As at the time of closing oral submissions, the written submissions before the Court were as follows:

1. Submissions of the State: Final Hearing, dated 9 April 2021 (“the State’s Primary Submissions”) (55 pages);

2. Outline of Submissions for Final Hearing on behalf of Mr Ibrahim, dated 20 April 2021 (“Mr Ibrahim’s April Submissions”) (40 pages);

3. Submissions in Reply of the State: Final Hearing, dated 23 April 2021 (“the State’s Reply Submissions”), which responded to Mr Ibrahim’s April Submissions) (12 pages); and

4. The State’s Index Submissions, dated 14 May 2021 (23 pages).

15. Following the close of evidence, the parties filed further written submissions, which were relied upon in addition to or in conjunction with submissions earlier filed, namely:

1. Outline of Closing for Final Hearing on behalf of Mr Ibrahim, dated 17 May 2021 (“Mr Ibrahim’s May Submissions”) (44 pages). Those submissions recast, in a number of respects, Mr Ibrahim’s April Submissions, in particular, with respect to the first predominant issue. Mr Ibrahim’s May Submissions were accompanied by five annexures that were titled as follows:

1. Annexure A: Chronology of Circumstances Surrounding Psychiatric Hospital Admissions (2 pages);

2. Annexure B: Responses to Defendant Episodes of Mental Health Deterioration (3 pages);

3. Annexure C: Comparison of Dr Roger Shanahan’s Reports and Dr Clarke Ramon Jones’ Report (7 pages);

4. Annexure D: Qur’anic Verses (27 pages); and

5. Annexure E: Responses to Proposed Conditions sought by Plaintiff (prepared prior to provision of Plaintiff’s Table [namely, Ex 8]) (8 pages).

2. The State’s Reply to Mr Ibrahim’s May Submissions, dated 18 May 2021 (“the State’s May Submissions”) (10 pages). That submission included an annexure with proposed corrections to Annexure C of the Mr Ibrahim’s May Submissions.

EVIDENCE IN THE PROCEEDINGS

The Court Appointed Experts

16. In accordance with the orders made by R A Hulme J on 8 February 2021,
    Mr Ibrahim was examined by Dr Sharon Klamer, forensic psychologist, and Dr Sathish Dayalan, forensic psychiatrist, on 18 March 2021 and 19 March 2021 respectively (collectively, “the court appointed experts”).

17. The court appointed experts produced the following reports:

1. Dr Klamer’s Psychological Report, dated 29 March 2021 (“the Klamer Report”); and

2. Dr Dayalan’s Psychiatric Report, dated 31 March 2021 (“the Dayalan Report”).

18. The court appointed experts were required for cross-examination.

The State’s Evidence    

19. The State relied on the following evidence:

1. Reports of Dr Rodger Shanahan:

1. dated 9 November 2020 (“Dr Shanahan’s First Report”); and

2. dated 24 April 2021.

2. The Risk Assessment Report of Dr Kerri Eagle, dated 16 November 2020 (“the Eagle Report”). I note Dr Eagle produced a supplementary report dated 2 December 2020 and had also earlier prepared a report dated 19 November 2019. All three reports were relied upon by the State.

3. The affidavit of Ms Ellen Southwood, solicitor for the State, affirmed 8 December 2020 (“the First Southwood Affidavit”), together with exhibit ES-1. Exhibit ES-1 contained, inter alia, a report of Dr Reece Anderson dated 25 October 2019 (“the Anderson Report”) and a report of Dr Gordon Elliott dated 4 November 2019 (“the Elliot Report”).

4. Two further affidavit of Ms Southwood:

1. affirmed 24 December 2020 (“the Second Southwood Affidavit”).

2. affirmed 7 April 2021.

5. The affidavit of Louisa Van Mal, Governor at John Morony Correctional Centre within Corrective Services NSW (“CSNSW”), sworn 7 April 2021.

6. The affidavit of Glenn Robinson, a Correctional Officer in the Immediate Action Team within CSNSW, affirmed 7 April 2021.

7. The affidavit of Shane Bagley, a Terrorism High Risk Offender Applications and Operational Governance Officer within the Terrorism High Risk Offender Unit (“THRO Unit”) of the Department of Communities and Justice, sworn 23 April 2021.

8. The affidavit of Detective Senior Constable Joshua Patch (“DSC Patch”), a detective in the High Risk Terrorist Offenders Unit, Counter Terrorism and Special Tactics Command (“HRTO Unit”), within the NSW Police Force, sworn 23 April 2021.

20. Dr Shanahan was required for cross-examination.

Mr Ibrahim’s Evidence

21. Mr Ibrahim relied upon the affidavit of Dr Clarke Jones, dated 11 April 2021 (“the Jones Report”). At the hearing of the matter, his evidence was taken as concurrent evidence with that of Dr Shanahan. That concurrent evidence occurred during the course of the final hearing of the matter on 26 April 2021 (upon a one day estimate for the proceedings).

22. After the cross-examination of Dr Jones by senior counsel for the State (and at the conclusion of the hearing on 26 April 2021), counsel for Mr Ibrahim identified an intention to seek to rely upon further expert evidence, then stating that that evidence was sought to be led in order to deal with “the accuracy” or otherwise of the “verses” to which Dr Shanahan had referred, namely, references to, inter alia, the Qur’an.

23. That was the first occasion that Mr Ibrahim had indicated an intention to call further expert evidence. I accept the submission of the State that such an intention had not even been foreshadowed until after the conclusion of
    Dr Jones’ cross-examination. Mr Ibrahim was required to file a notice of motion as to the further expert evidence he intended to lead (at this stage the application to be made had not been identified).

MR IBRAHIM’S NOTICE OF MOTION

24. By a notice of motion filed 29 April 2021, Mr Ibrahim sought leave to file an affidavit of Mr Saad Fariwala, dated 28 April 2021 (“the Fariwala Report”).

25. The Court ultimately ruled that the notice of motion should be dismissed (and in doing so, treated the notice of motion as, in substance, being an application for leave to lead the further expert evidence in question). It was indicated that reasons would be given for that decision in conjunction with the primary decision of the Court in relation to the summons brought by the State. I propose to provide those reasons at this juncture as, in some respects, those reasons cast a light upon the predominant issues in the proceedings.

26. Issues of lateness and prejudice could be readily identified in the context of the notice of motion as could a further issue as to a failure of the Fariwala Report to satisfy the requirements of the Uniform Civil Procedure Rules2005 (NSW) (“UCPR”) (see r 31.23). In my view, the application made on behalf of Mr Ibrahim occurred in circumstances where, as the State put it, Dr Jones’ evidence did not ultimately withstand the scrutiny of cross-examination as to critical aspects of Mr Ibrahim’s case in the midst of the concurrent evidence (which process occurred by consent) of Dr Shanahan and Dr Jones. The further expert evidence purported to traverse the same ground as covered by Dr Shanahan and Dr Jones.

27. However, I propose to commence with a contention advanced by the State that leave should not be granted because the application to admit the Fariwala Report was futile; a contention which, in my view, was correct. There were two significant issues with the Fariwala Report being admitted into evidence:

1. the first concerned whether the report was directed to any question relevant to the issues in the proceedings; and

2. the second was the expertise of Mr Fariwala to opine on the questions addressed by Dr Shanahan.

28. The Fariwala Report purported to answer six questions, based upon the opinion of Mr Fariwala, namely:

1. What specialised knowledge, study, experience and training is required for someone to give expert evidence on the interpretation and transmission of the Qur’an?

2. What specialised knowledge, study, experience and training is required for someone to give expert evidence on the interpretation and transmission of Hadith?

3. Are there any parts of the two reports where Dr Shanahan has provided an interpretation and transmission of the Qur’an?

4. Are there any parts of the two reports where Dr Shanahan has provided an interpretation and transmission of the Hadith?

5. Does Dr Shanahan have the requisite specialised knowledge based on his training, study or experience to give expert evidence in the interpretation and transmission of the Qur’an?

6. Does Dr Shanahan have the requisite specialised knowledge based on his training, study or experience to give expert evidence in the interpretation and transmission of the Hadith?

29. It is important to observe that, in providing the answers to those questions, and as conceded by counsel for Mr Ibrahim, Mr Fariwala was not, in fact, provided with any statements made by Mr Ibrahim as such. The Fariwala Report was responsive to Dr Shanahan’s First Report, even though it may be noted that Dr Shanahan extracted some of Mr Ibrahim’s statements in his reports. It follows that the State is correct to submit that the probative value of the Fariwala Report was to be judged insofar as it could rationally affect the Court’s assessment of Dr Shanahan’s evidence. It is in this respect that the Fariwala Report was misconceived.

30. The Fariwala Report essentially addressed the issue of whether Dr Shanahan had the appropriate expertise in the interpretation and scholarship of the Islamic text, the Qur’an and the Hadith. However, that approach misunderstood Dr Shanahan’s evidence, which consideration is reflected in some of the arguments otherwise advanced on behalf of Mr Ibrahim with respect to the first predominant issue in these proceedings.

31. Dr Shanahan did not purport to be, an expert in the interpretation and scholarship of the Qur’an and the Hadith. Rather, Dr Shanahan’s expertise was in Islamic Studies and the areas of political Islam and Islamic terrorist organisations (see Dr Shanahan’s First Report at paras 2-5).
    Dr Shanahan was well qualified to give that evidence.

32. Dr Shanahan’s First Report was not concerned with the analysis of
    Mr Ibrahim’s statements and writings as matters of religious interpretation. The two key questions addressed by Dr Shanahan in his first report were questions that squarely arise under ss 10(1)(c)(i) and 10(1A)(a)(iii) of the THRO Act, namely:

1. Has Mr Ibrahim made a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism?

1. Has Mr Ibrahim made any other statement or carried out any other activity that otherwise advocates support for any terrorist act or violent extremism?

33. The first key question was directed at a comparison of Mr Ibrahim’s use of language and the threats of violence promoted by, inter alia, certain terrorist organisations. Dr Shanahan identified expressions used in Mr Ibrahim’s writing that he considered was connected to or drew upon certain Qur’anic references (in particular, the use of the term of “hypocrites” in a derogatory manner) (see Dr Shanahan’s First Report at paras 13-15). Dr Shanahan then opined that this discourse also featured in the discourse of Al-Qa’ida and Islamic State, two Islamic terrorist organisations (see Dr Shanahan’s First Report at paras 17-19). These are opinions with which Dr Jones agreed in cross-examination. These were not opinions as to how those aspects of the Qur’an should be interpreted within the Islamic faith, or whether Mr Ibrahim or those terrorist organisations used terms such as “hypocrite” consistently with a theologically sound interpretation of the Qur’an.

34. The Fariwala Report did not engage with those opinions. Its critique was of
    Dr Shanahan’s purported interpretation of a number of the religious elements identified by Dr Shanahan (see Fariwala Report at paras 38-49 regarding “hypocrisy” within Islam). The emphasis in the Fariwala Report appears to be that the concept of hypocrisy in Islam, whilst often a “pejorative one”, “does not however necessitate a vitriolic discourse or connection to violent deviant splinter groups like ISIS” (see the Fariwala Report at para 43). Whilst that notion may be accepted for the purposes of the ruling on the motion, the observation does not engage with the issue as to whether the discourse of hypocrisy had, in fact, been used in that way by terrorist organisations such as Islamic State, and whether that was language used by Mr Ibrahim, which were the questions to which Dr Shanahan’s First Report was directed. In that respect, in my view, the Fariwala Report simply did not engage with Dr Shanahan’s evidence.

35. The second key question in Dr Shanahan’s First Report was directed at an assessment of whether Mr Ibrahim’s statements advocated support for any terrorist act or violent extremism. Dr Shanahan identified a number of statements made by Mr Ibrahim that advocated for violence using Islamic terminology (with which Dr Jones agreed), and then proceeded to explain, based on his expertise in Islamic studies, what a number of those references were (see Dr Shanahan’s First Report at para 21). Dr Shanahan’s opinion was that each identified statement supported violent extremism because of the link between violence and an expressed religious view. Whilst his opinion was supported by his knowledge of Qur’anic references, that was knowledge of the Qur’an as a text and Dr Shanahan did not purport to rely upon any theological understanding and interpretation of the Qur’an.

36. I agree with the submission of the State that the distinction is made clear by a letter written by Mr Ibrahim on 30 September 2009, to which I will later refer, wherein Mr Ibrahim refers to the “Surate al fil”. Dr Shanahan explained that that was a reference to a Qur’anic verse that told of the violent deaths of those who tried to invade Mecca. With that understanding of the Qur’anic reference, Dr Shanahan opined that Mr Ibrahim appeared to be advocating for violent deaths of certain individuals based on an extremist interpretation of Islamic sources. Mr Fariwala’s response to that point appeared to be at paras 51-52 of the Fariwala Report (although no paragraph references to Dr Shanahan’s reports were given by Mr Fariwala). The commentary there, namely, identification that that was a well-known chapter in the Qur’an, did not suggest that Dr Shanahan was incorrect in his description of the “Surate al fil”, or that he had misunderstood it. Mr Fariwala’s opinion, in that regard, could not rationally affect the assessment of Dr Shanahan’s opinion regarding how Mr Ibrahim’s reference to the “Surate al fil” should be characterised.

37. There was an element of the Fariwala Report which may have been potentially relevant insofar as it concerned how well known some of the passages of the Qur’an used by Mr Ibrahim were within the Islamic community. However, that issue connected to part of the opinion of Dr Shanahan, which was expressly withdrawn by the State, namely, that Mr Ibrahim has a higher level of understanding of textual material than a normal observant Muslim.

38. The Fariwala Report purported to challenge Dr Shanahan’s opinion that Mr Ibrahim “appeared to have sufficient knowledge of particularised Islamic textual sources and history to be able to link threats of violence with some form of Islamic textual justification”. More particularly, nothing in the Fariwala Report suggested that the matters identified by Dr Shanahan were not in fact Islamic religious references, or that Mr Ibrahim either did not have knowledge of those references or did not use those references in his statements, which were matters that could rationally bear upon whether the Court accepted
    Dr Shanahan’s opinion.

39. Whilst the Fariwala Report did focus upon the theological interpretation of various Islamic religious texts it did not, therefore, address the questions raised by Dr Shanahan. Further, whilst Mr Fariwala plainly did have qualifications and training in respect of traditional Islamic religious sciences, his expertise does not extend to (whether as a matter of training, study or experience) any specialised knowledge of political Islam, political science, extremist violence or the understanding of Islamic terrorist organisations and more particularly, the discourse utilised by those organisations and their adherence.

40. Before turning to procedural considerations as such, two further matters may be identified in this context:

1. Mr Fariwala did not consider any of Mr Ibrahim’s actual statements (as opposed to Dr Shanahan’s discussion of some of them), and therefore, the Fariwala Report could not independently assist the Court to form a view as to questions posed by s 10(1)(c)(i) or s 10(1A)(a)(iii) of the THRO Act, which were the issues in dispute to which Dr Shanahan’s evidence was clearly directed.

2. The question of whether Dr Shanahan has the appropriate expertise in the interpretation and scholarship of the Islamic religious texts, having regard to the subject matter of his opinions as discussed above, is a matter of law and, therefore, a matter for the disposition of this Court. as to. It is not a matter to be determined by another “expert” whose opinion is provided to the Court as, inter alia, a specialist in the Qur’an. The State submitted that there was no basis upon which this Court would conclude that it is only someone, within the Islamic faith, described as a “specialist in the Quran” who was able to give expert evidence in these proceedings as to the matters addressed by Dr Shanahan in his reports. That submission may be accepted. In Australian Cement v Adelaide Brighton [2001] NSWSC 645 at [4], Barrett J observed it was for the Court to identify the “specialised knowledge” that the expert had and the training, study or experience on which that specialised knowledge is based. Further, as stated in AAPT v Cable & Wireless Optus (1999) 32 ACSR 63; [1999] NSWSC 509 at [11], questions of law are matters for the Court to determine by the application of legal principles without the aid of expert evidence.

41. The State also contended that the evidence sought to be led in the Fariwala Report sought to contradict aspects of Dr Jones’ evidence under cross-examination. One aspect, in that respect, was the apparent criticisms of Dr Shanahan’s evidence, agreed to by Dr Jones, about the term “hypocrites” (see the Fariwala Report at paras 39, 43 and 56). There were many other aspects of Dr Jones’ evidence which were criticised (directly or indirectly) in the Fariwala Report as follows:

1. Dr Jones agreed that whist he was not sure whether or not the quotations were exact quotations from the Qur’an, he agreed that the quotes used were “particularly of a violent nature”;

2. Dr Jones agreed that Dr Shanahan’s statement that Mr Ibrahim had made statements on numerous occasions in which he advocated violence using Islamic terminology was “an entirely accurate statement”;

3. Dr Jones gave evidence as to verses from the Qur’an included in statements by Mr Ibrahim that “[t]hey’re violent verses, that’s for sure, and Dr Shanahan has rightly pointed that out”;

4. Dr Jones agreed that the language used by Mr Ibrahim could be considered to constitute threats of violence;

5. Dr Jones gave evidence that “it’s quite likely, yes, he’s used the same text that a violent extremist would’ve used”;

6. Dr Jones agreed that Mr Ibrahim had on a number of occasions used the term “hypocrites” in relation to acts of violence being perpetrated against them and that the term “hypocrites” is used as a pejorative term to apply to Muslims who possess weak faith;

7. Dr Jones agreed with Dr Shanahan’s opinion in relation to there being a verse in the Qur’an which notes that the fires of hell await hypocrites;

8. Dr Jones agreed that the use of the term “hypocrites” in a derogatory manner and the making of threats against them, including use of the term “hypocrites” together with identification of a violent end that will befall them, has been a feature of the discourse of Al-Qa’ida and Islamic State; and

9. Dr Jones agreed that “one interpretation” is that Mr Ibrahim’s statements were statements that advocated support for acts of violent extremism.

42. Having regard to that last mentioned discussion, as to the criticisms (directly or indirectly) contained in the Fariwala Report of Dr Jones’ evidence, in my view, it was not appropriate to permit, in the midst of the concurrent evidence of Dr Shanahan and Dr Jones, a further expert report to be filed and relied upon which sought to contradict the evidence of Mr Ibrahim’s own expert given under cross-examination, that having been the first occasion on which such evidence was even foreshadowed. The permission to adopt that approach would stand contrary to the proper control and restricting of the use of expert evidence, the interests in finality of litigation and orderly case management (even allowing in that latter respect some greater latitude in this case because of the restricted timelines associated with the matter).

43. In Chapman v Chapman [2007] NSWSC 1109 (“Chapman”) at [4], Brereton J held that r 31.19 of the UCPR had the effect that, unless the Court otherwise orders, expert evidence may not be adduced at trial unless directions have been sought “promptly” under r 31.19 and, if directions are given, other than in accordance with those directions. “Promptly” was said to mean “as soon as it became apparent to a party that he or she may need to adduce expert evidence” and, his Honour further noted, “[t]hat obligation arises before an expert is retained, let alone before the expert provides a report”: at [6]. Foremost amongst the purposes of this rule was that it enabled the Court to control the giving of expert evidence and restrict expert evidence to that which is reasonably required to resolve the proceedings: at [7].

44. Similarly, in Hrdavec v State of New South Wales [2018] NSWSC 1081 (“Hrdavec”), Fagan J considered a late application to serve expert evidence. His Honour referred to Chapman at [6]-[7] (see Hrdavec at [6]-[8]) and then said that, in circumstances where an expert report was served significantly late (at [9]):

[9] [unless there was some compelling explanation for the plaintiff’s delay or a clear case that the expert evidence would be important to the resolution of issues in the proceedings or some other powerful circumstance in favour of the reception of the evidence, I would not make directions under r 31.19 on such a belated application and would not permit the report to be used.

45. In Hrdavec, as in this matter, there was no explanation for the delay. Accordingly, the Court refused to permit the expert report in question to be adduced. The same approach is applicable here where the matter was part heard and the cross-examination of the expert witnesses had commenced and was substantially completed.

46. Those procedural considerations obviously attract issues concerning lateness and prejudice. Those concepts require some further context.

47. The relevant procedural background to the foreshadowed application and notice of motion was as follows:

1. Dr Shanahan’s First Report was filed, and served on Mr Ibrahim, on 9 December 2020, more than four months prior to the hearing listed on
   26 April 2021;

2. the orders of the Court made on 18 February 2021 required evidence to be filed and served by Mr Ibrahim by 5pm on 14 April 2021;

3. on 15 April 2021 Mr Ibrahim filed and served the Jones Report;

4. according to the affidavit of Mr Mohammad Khan, solicitor for Mr Ibrahim, Mr Ibrahim had formed the intention prior to 22 April 2021 to challenge the expertise of Dr Shanahan in areas of Qur’anic and Hadith interpretation;

5. the matter was listed for final hearing on 26 April 2021;

6. as previously mentioned, Mr Ibrahim’s application for further expert evidence was made after the cross-examination of Dr Jones on 26 April 2021;

7. it may also be observed that the Fariwala Report, in many respects, agreed with the interpretation by Dr Shanahan as to the concept of “hypocrites” but sought to distinguish the term as one not necessitating vitriolic discourse. Similarly, the Fariwala Report did not disagree with Dr Shanahan’s description of the references to “Surah Ad-Dukhan” but suggested that this verse had “no practical bearing in the world we live in today”. Further, the Fariwala Report did not dispute the accuracy of Dr Shanahan’s description of “Surate al fil”. It was simply noted that it was a verse that was well known. In short, the reason originally given for the receipt of the further expert evidence, so as to deal with the accuracy or otherwise of the verses to which Dr Shanahan referred, did not ultimately materialise in the respects to which I have referred. As earlier mentioned, the Fariwala Report may be properly described as observations by a spiritual scholar in Islam as to Dr Shanahan’s expertise as to the ways in which Qur’anic verses can generally be interpreted but without engaging specifically with Dr Shanahan’s opinion insofar as it concerned s 20(c) of the THRO Act.

8. There was no dispute that Mr Ibrahim was well aware of the evidence sought to be given by Dr Shanahan in his report and the expertise he relied upon in that respect. In circumstances where there was ample opportunity to call evidence in reply and in addition to the evidence of
   Dr Jones. I do not consider the elaboration by Dr Shanahan upon his expertise in his extended curriculum vitae (marked Ex 3) offers any proper explanation for the late production of the Fariwala Report. By the time of the affirmation of the affidavit of Mohammad Khan, solicitor for Mr Ibrahim, on 29 April 2021 it had clearly been the intention of Mr Ibrahim to challenge Dr Shanahan’s expertise.

9. A stronger case for admission of the Fariwala Report (although not a complete one) might have been given by Dr Shanahan’s Second Report. However, any material objected to by counsel for Mr Ibrahim as “new evidence” in that report was not read by the State.

48. Further, in my view the grant of leave to file and rely upon the Fariwala Report at the stage of the proceedings where it was introduced would have caused real prejudice to the State.

49. In order to accord procedural fairness, Dr Shanahan must have an opportunity to respond to the Fariwala Report. Sufficient time needed to be provided to Dr Shanahan to provide (albeit within strict limits) a considered response including making any necessary enquiries.

50. Whilst the notice of motion was not listed until 14 May 2021, a procedure was identified which would have overcome that apparent difficulty. The State sought consent to the Fariwala Report being provided to Dr Shanahan in advance of the hearing so as to overcome the practical difficulties of Dr Shanahan being able to respond (assuming he was able to respond upon the receipt of that material). Mr Ibrahim did not consent to that procedure and the Court thereby determined not to adopt the procedure sought by the State. It may be further noted that, if Dr Shanahan was not in a position to meet the Fariwala Report, then the State may have sought to call further evidence.

51. It followed then that the question of prejudice then came to be considered on 20 May 2021, the second day of the hearing, in the circumstances of the prejudice then operating upon the State including the time constraints under which the proceedings were operating (the ISO ceased to operate from 21 May 2021).

52. The final factor in the ruling related to the Expert Witness Code of Conduct in Sch 7 to the UCPR (“the Code”) was far from the most significant consideration in the disposition of the notice of motion. However, the State’s submissions, in that respect, were not without substance.

53. The Fariwala Report did not refer to Mr Fariwala having been provided with the Code, nor to Mr Fariwala having reviewed and complied with the Code in the preparation of the Fariwala Report.

54. For this reason, it was contended by the State that the Fariwala Report was not prepared in accordance with r 31.23 of the UCPR and should not be admitted in evidence: r 31.23(3), unless the Court otherwise ordered. Oral evidence should also not be received from Mr Fariwala unless the Court was otherwise satisfied that Mr Fariwala had read the Code and agreed to be bound by it: r 31.23(4).

55. The requirement to satisfy the Code is the substantive consideration. The Court must be satisfied that the expert report in question was, in fact, prepared in compliance with the Code (see First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 at [6]-[11] and the authorities summarised therein). In this case, there was no further evidence called from Mr Fariwala addressing whether he had, in fact, read and complied with the Code.

THE STATUTORY REGIME

Introduction

56. The primary object of the THRO Act is to “provide for the extended supervision and continuing detention of certain offenders posing an unacceptable risk of committing serious terrorism offences so as to ensure the safety and protection of the community”: see s 3. Another object of the THRO Act is “to encourage [such] offenders to undertake rehabilitation”. It follows that the orders that may be made under the THRO Act are protective, not punitive: see, by analogy, Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 345 ALR 669; [2017] NSWCA 189 (“Kamm”) at [113], [147].

Preconditions for the making of an ESO

57. As explained in State of New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 (“Naaman No 2”), the statutory preconditions for the making of an ESO are set out in s 20 of the THRO Act. They are as follows:

1. the offender is an “eligible offender”: chapeau of s 20, read with s 7;

2. the offender is in custody or under supervision (or was at the time the original application for an ESO was filed):

1. while serving a sentence of imprisonment for a NSW indictable offence, or

2. under an existing ISO, ESO, interim detention order or continuing detention order: s 20(a);

3. the application for the ESO is made in accordance with Pt 2 of the THRO Act: s 20(b);

4. the Court is satisfied that the offender is any of the following:

1. a “convicted NSW terrorist offender”;

2. a “convicted NSW underlying terrorism offender”; or

3. a “convicted NSW terrorism activity offender”: s 20(c);

5. the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an ESO: s 20(d).

58. I will not turn to consider those preconditions, as they apply to Mr Ibrahim, seriatim.

The First Precondition: Eligible Offender

59. Section 7 of the THRO Act defines an eligible offender as one who is:

1. 18 years of age or older, and

2. serving (or is continuing to be supervised or detained under the THRO Act after serving) a sentence of imprisonment for a NSW indictable offence.

60. A “NSW indictable offence” is defined in s 4(1) of the THRO Act to be an offence against the law of the State for which proceedings may be taken on indictment.

61. Mr Ibrahim is an “eligible offender” within the meaning of s 7 because:

1. He is 45 years of age (see s 7(a)); and

2. Mr Ibrahim is “continuing to be supervised” under the THRO Act “after serving … a sentence of imprisonment for a NSW indictable offence” because:

1. he is currently being supervised pursuant to an ISO made under the THRO Act on 8 February 2021 and renewed on 17 March 2021 (and further renewed on 14 April 2021); and

2. the index offence, for which he served a sentence of imprisonment of 5 years, commencing on 22 February 2016 and expired on 21 February 2021, was “an offence against a law of the State for which proceedings may be taken on indictment”: see ss 5, 6 and 259 of the Criminal Procedure Act 1986 (NSW), read with Sch 1, Table 1, Pt 2, items 3 and 3A (see s 7(b) of the THRO Act).

The Second Precondition: s 20(a)

62. The second precondition is met because Mr Ibrahim was “under supervision … under an existing [ISO]”, specifically the ISO made under the THRO Act on 8 February 2021, which was renewed on 17 March 2021 and further renewed on 14 April 2021.

63. The second precondition was additionally satisfied because, at the time of the State’s filing of an application for an ESO on 8 December 2020, Mr Ibrahim was in custody serving a sentence of imprisonment for the index offence (a NSW indictable offence).

The Third Precondition: s 20(b)

64. Part 2 of the THRO Act concerns “Extended Supervision Orders”. Section 23 of Div 2.3 of that Part sets out the requirements with respect to an application made by the State for an ESO. The State’s application meets the requirements of s 23 of the THRO Act because:

1. Section 23(1) is met by the same consideration arising under the first and second preconditions.

2. Section 23(2) is met because the application was made in the last 12 months of Mr Ibrahim’s “current custody or supervision” (ie, his custody or supervision at the time of the application: s 19) because it was made on 8 December 2020, approximately two and half months before the expiry of his sentence of imprisonment for the index offence.

3. The requirements of s 23(3) are met by the State’s application because the First Southwood Affidavit (together with exhibit ES-1), the Second Southwood Affidavit and the Eagle Report were advanced by the State in support of its application and addressed the matters referred to in s 25(3) of the THRO Act: s 23(3)(a). That documentation included an assessment of the likelihood of Mr Ibrahim committing a serious terrorism offence: s 23(3)(b).

The Fourth Precondition – Convicted Terrorism Activity Offender: s 20(c)

65. Section 20(c) of the THRO Act provides as follows:

20 Supreme Court may make extended supervision orders against eligible offenders if unacceptable risk

The Supreme Court may make an order for the supervision in the community of an eligible offender (called an extended supervision order) if:

…

(c) the Supreme Court is satisfied that the offender is any of the following:

(i) a convicted NSW terrorist offender,

(ii) a convicted NSW underlying terrorism offender,

(iii) a convicted NSW terrorism activity offender,

…

66. As mentioned earlier here an issue is whether Mr Ibrahim was caught by the provisions of s 10(1)(c)(i) or s 10(1A)(a)(iii).

67. The term “convicted NSW terrorism activity offender” is relevantly defined in s 10(1) of the THRO Act as follows:

(1) In this Act, an eligible offender is a convicted NSW terrorism activity offender if the offender is serving (or is continuing to be supervised or detained under this Act after serving) a sentence of imprisonment for a NSW indictable offence (the offender’s offence) and any of the following apply in respect of the offender: …

(c) the offender:

(i) is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or

(ii) has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism.

68. The THRO Act contains s 10(1A), which is a “deeming provision” that brings certain conduct within the terms of s 10(1)(c) without limiting the conduct which might otherwise fall within the subsection: Cheema v State of New South Wales (2020) 102 NSWLR 714; [2020] NSWCA 190 (“Cheema”) at [17], [63]-[65]. Section 10(1A) relevantly provides:

(1A) Without limiting subsection (1)(c):

(a) advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following:

(i) making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(ii) using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

(iii) making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and

69. Relevant to the consideration of s 10(1)(c) is the definition of the words used in the subsection, namely:

1. “advocacy support”;

2. a “terrorist act”;

3. “violent extremism”.

Advocating Support

70. The THRO Act does not exhaustingly define “advocating” as used in s 10(1)(c): State of New South Wales v Dunn(a pseudonym) (2018) 273 A Crim R 238; [2018] NSWSC 1008 (“Dunn”) at [29] (per N Adams J).

71. Nonetheless, some additional observations may be made. Both s 10(1A)(a)(ii) and (iii) require that a comparison be made between the acts of the offender and the acts of a relevant person, group, organisation or ideology.

72. The expression “person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism” is found in both provisions. In Cheema, the Court rejected an argument that s 10(1A)(a)(ii) should be limited to using or displaying images or symbols which could reasonably be construed as advocating support for terrorist acts or violent extremism; or that the subjective intention of the person using or displaying the images or symbols should be imported into the subsection: see Cheema at [62]-[65], [82]-[85].

73. There is no requirement or specification in s 10(1A) as to when the relevant act of “advocacy” occurred. In Naaman No 2, there was evidence that the offender had placed a poster of Osama Bin Laden on his cell wall while in custody 17 years previously. Although it was unnecessary to determine the point, the Court of Appeal stated that, on one view, the THRO Act mandated that the offender was a “convicted NSW terrorism activity offender” by reason of s 10(1A)(a)(ii): at [26]. Further, in Lawrencev State of New South Wales (2020) 103 NSWLR 401; [2020] NSWCA 248 at [58], Bathurst CJ accepted that “the persons against whom the orders are sought may fall within the definition of a convicted NSW terrorism offender as a result of historical matters”.

74. Section 10(2) makes clear that s 10(1)(c) applies “regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned”. In other words, s 10(1)(c) “will apply irrespective of whether a person has been convicted of an offence connected with terrorism”: Naaman No 2 at [22].

Terrorist Act

75. By s 4 of the THRO Act, the term “terrorist act”, as it appears in s 10(1)(c)(i), takes the same meaning as given to the term in Pt 5.3 of the Criminal Code Act 1995 (Cth) (“Criminal Code”). There, the term is defined as follows (see s 100.1):

"terrorist act" means an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

76. Subsections (2) and (3) referred to in the above definition read as follows:

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

77. In R v Lodhi [2006] NSWSC 584 at [75], Whealy J observed that the definition of “terrorist act” in the Criminal Code “postulates an action or threat of action of the widest possible kind”.

78. Likewise, the Court of Appeal has described the term “terrorist act” as “very broadly defined”: see Naaman No 2 at [27]. In State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 (“Cheema No 1”) at [187], Johnson J observed that the “definition of ‘terrorist act’ includes a wide range of conduct extending to preparatory offences and other conduct falling short of the actual commission of terrorist acts which cause injury to persons or damage to property”, noting that “the legislative intention underlying the wide range of conduct included in terrorist offences, being the protection of the community”.

79. Paragraphs (b) and (c) of the definition in s 100.1 of the Criminal Code refer to certain actions or threats of action done with a particular “intention”. The concept of “intention” is addressed in s 5.2 of the Criminal Code as follows:

5.2 Intention

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

80. In State of NSW v Ceissman [2018] NSWSC 508 (“Ceissman”) at [78], Rothman J observed that “ordinarily, once action, not described in (3) of the definition [of terrorist act in the Criminal Code] is performed as part of, or in furtherance of, a broader political, religious, or ideological course, then the more probable inference is that it is performed with [the necessary intention under the Criminal Code]”.

Violent Extremism

81. The term “violent extremism” is not defined in the THRO Act. It was added to
    s 10 via the Community Protection Legislation Amendment Bill 2018 (NSW). The Oxford Online Dictionary defines “extremism” as “[t]he holding of extreme political or religious views; fanaticism”. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views: State of New South Wales v Elmir [2019] NSWSC 1867 at [34]. In my view, the inclusion of the term “violent extremism” was intended to broaden s 10(1)(c) so as to capture conduct in support of violent actions that might not satisfy the technical definition of terrorist act. For example, violent extremism does not necessarily require any intention to advance political, religious or ideological causes or influence government or the public by intimidation.

82. The juxtaposition of the concept “violent extremism” with the concept of “terrorist act” indicates that the concept of violent extremism concerned some acts which were separate and distinct from those which fall within the definition of a terrorist act, although plainly the two concepts are not mutually exclusive.

The Fifth Precondition: Section 20(d)

83. I will refer to the principles applied to this provision in dealing with the question as to whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a “serious terrorism offence” if not kept under supervision under an ESO. I shall, however, firstly, deal with the issue of whether Mr Ibrahim a “convicted NSW terrorism activity offender’’.

IS MR IBRAHIM A CONVICTED NSW TERRORISM ACTIVITY OFFENDER?

84. Mr Ibrahim contended that he had not made any statement or carried out any other activity that otherwise advocated support for any terrorist acts or violent extremism of the kind that fell within the ambit of s 10(1A)(a)(iii) of the THRO Act “in combination with s 10(1)(c)”. In particular, it was contended that the Court could not be satisfied that any language used, or threats made, had either the character “of a kind that is promoted by a person, group of persons or organisations” or “an ideology, that supports terrorist acts or violent extremism”.

85. In many respects, the case for Mr Ibrahim, as to this question, rests upon a contention that the evidence of Dr Jones should be preferred, either wholly or substantially, in preference to the expert of Dr Shanahan and, further, that
    Dr Shanahan’s evidence should be rejected as lacking the requisite expertise.

86. In Mr Ibrahim’s May Submissions, Mr Ibrahim sought to cast doubt upon
    Dr Shanahan’s opinion by reference to the opinions of Drs Dayalan and Klamer.

87. It may be noted that in Mr Ibrahim’s April Submissions, it was contended that the Court should reject Dr Shanahan’s evidence that Mr Ibrahim’s use of the Qur’an, Hadith and other Islamic references was indicative of someone with a higher level of understanding of Islamic textual material and should, rather, accept Dr Jones’ evidence that Mr Ibrahim had a low-level of Islamic and Qur’anic knowledge and Hadith knowledge. That issue dissipated, due to
    Dr Shanahan’s acceptance that Mr Ibrahim did not exhibit an understanding of those texts beyond a normal level of knowledge of textual material from an average Muslim. As a result, that issue fell away in Mr Ibrahim’s May Submission but it should be noted that Mr Ibrahim relied upon that concession as going to Dr Shanahan’s credit.

88. A related contention in Mr Ibrahim’s April Submissions was that Dr Shanahan had, in the course of expressing a view as to Mr Ibrahim’s understanding of Islamic textual material, conflated concepts of Islam and terrorism. It was submitted that whether Mr Ibrahim had a normal observant Muslim’s knowledge or an average Muslim’s knowledge of that textual material had no bearing upon whether he supported terrorism or violent terrorism. Reliance was placed upon Dr Jones’ evidence that religiosity and religious participation can be associated with a reduction in criminal offending and anti-social behaviour as well as having other benefits in fostering an individual’s wellbeing.

89. Before turning to the full panoply of submissions advanced by Mr Ibrahim in Mr Ibrahim’s May Submissions, as to particular aspects of statements made by Mr Ibrahim (and their significance as to the resolution of this issue), it is appropriate to make some preliminary observations about those contentions, as follows:

1. The challenge to Dr Shanahan’s expertise is ill-founded. As earlier mentioned, he does not purport to be an expert in the interpretation of scholarship of the Qur’an or the Hadith. Rather, his expertise is in Islamic studies and areas of political Islam and Islamic terrorist organisations about which he is well qualified to give evidence. This consideration has some significance as Mr Ibrahim’s May Submissions sought to return to the contentions raised in the Fariwala Report with respect to which the Court had refused leave.

2. Having observed Drs Shanahan and Jones give evidence and having closely reviewed their respective opinions, broadly speaking, I prefer the evidence of Dr Shanahan. Dr Shanahan’s evidence was measured and well-reasoned, whilst Dr Jones’ evidence had tinges of advocacy. More significantly, the concessions made by Dr Jones in cross-examination, as discussed above, significantly undermined the force of his opinions. In any event, those opinions were diminished because of a failure to often engage with the evidence as to the language actually used by Mr Ibrahim in his various statements. As earlier mentioned, s 10(1A)(a)(iii) requires a comparison between acts and/or statements of Mr Ibrahim and those of a relevant person, group, organisation or ideology. It is necessary, therefore, that close attention be paid to what Mr Ibrahim actually said, a task that was scrupulously undertaken by Dr Shanahan (I will closely analyse those statements below).

3. I do not consider that Dr Shanahan’s concession as to the knowledge of Mr Ibrahim as to Islamic texts (or lack thereof) undermines the credit of Dr Shanahan. That evidence was given prior to cross-examination and as Dr Shanahan explained in cross-examination (as to two exceptions, with respect to the Dr Shanahan’s First Report):

WITNESS SHANAHAN: One is reference that I made to the normal level of – normal level of knowledge of textual material. It could be expected from an average Muslim. I would withdraw that in terms of describing somebody as normal in Islamic sense. Given it’s interpretive religion, it’s not realistic to talk about what is normal or abnormal, or what is average. And there’s also one term, an “abhir” which I have changed my view on.

4. Some reference should be made to the opinions of the court appointed experts in this respect. As I will discuss below, those experts expressed opinions specifically directed to the issue required for consideration under s 20(d) of the THRO Act. However, I do not consider the opinions or observations made by them, which were employed by Mr Ibrahim in his submissions on this topic, as discussed below, effectively cast doubt as to Dr Shanahan’s opinions.

5. Dr Shanahan’s opinions are directed to the specific statutory question posed by s 10(1A)(a)(iii) (as outlined below). In contrast, the expert opinions of court appointed experts, relied upon by Mr Ibrahim in Mr Ibrahim’s May Submissions (at paras 9-13) to cast doubt about
   Dr Shanahan’s opinion, were not. The aspects of the court appointed experts’ opinions, relied upon by Mr Ibrahim, concerned whether or not the statements made by Mr Ibrahim reflected “true beliefs” or “delusions”. However, it is not part of the statutory test under s 10(1A)(a)(iii) that the statements need to reflect “true beliefs”. It is sufficient that:

1. Mr Ibrahim made the statement (which is not in question); and

2. that the statement made a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism.

The court appointed experts did not opine on the latter question, and their evidence, as a psychiatrist and psychologist, respectively, cannot properly cast any doubt on Dr Shanahan’s opinion on the question specifically posed by s 10(1A)(a)(iii).

90. It is ultimately a matter for the Court to determine, on the evidence, whether
    Mr Ibrahim is a convicted NSW terrorism activity offender either by virtue of the provisions of s 10(1A)(a)(iii) or s 10(1)(c)(i). The evidence relied upon by the State in support of its case, in that respect, is Dr Shanahan’s First Report and evidence at the hearing. The following conclusions may be derived on the basis of Dr Shanahan’s First Report:

1. Mr Ibrahim used language that “could be considered to constitute threats of violence promoted by a radical Islamist ideology”, given that the language “mirrors the language used by some Islamist terrorist organisations”; and

2. Mr Ibrahim made statements “in which he advocates violence using Islamic terminology”, including by identifying people as “enemies of Islam”, dividing “the population into Muslims and non-Muslims/unbelievers/hypocrites” and justifying violence on religious grounds.

91. The first opinion is consistent with the conclusion that Mr Ibrahim had made threats of the kind that fall within the ambit of s 10(1A)(a)(iii) of the THRO Act. The second opinion is consistent with statements falling within the ambit of
    s 10(1)(c)(i) of the THRO Act.

92. Dr Shanahan also observed that he was struck by how Mr Ibrahim was able to quote particular elements of the Qur’an to justify violent actions across a range of chapters and verses.

93. Although there is repetition with my earlier summary of Dr Jones’ concession in cross-examination, it is useful at this junction to recap on that evidence.
    Dr Jones agreed that:

1. if the quotes were from the Qur’an they were of a particularly violent nature;

2. Mr Ibrahim had made statements on numerous occasions in which he advocated violence using Islamic terminology;

3. Mr Ibrahim made statements that referenced Qur’anic verses that were of a particularly violent nature, as Dr Shanahan had “rightly pointed out”;

4. the language used by Mr Ibrahim could be considered to constitute threats of violence;

5. Mr Ibrahim had used the same text that a violent extremist group would have used;

6. Mr Ibrahim had on a number of occasions used the term “hypocrites” in relation to acts of violence being perpetrated against them and one meaning of “hypocrites” is that it is the pejorative term applied to Muslims who possess weak faith or who profess Islam whilst secretly working against it;

7. the use of the term “hypocrites” in a derogatory manner and the making of threats against “hypocrites” is a feature of the discourse of Al-Qa’ida and Islamic State, i.e. “those terrorist groups” and is precisely the kind of threat promoted by those groups; and

8. Mr Ibrahim made statements that, on one interpretation, are statements that advocate support for acts of violent extremism.

94. I will return to Dr Shanahan’s conclusions, as referred to above, in the context of particular statements made by Mr Ibrahim identified below (referable to s 10(1A)(a)(iii) and s 10(1)(c)), but will first turn to a number of overarching proponents advanced by Mr Ibrahim in Mr Ibrahim’s May Submissions.

95. Mr Ibrahim’s contentions with respect to s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act are encapsulated in para 8 of Mr Ibrahim’s May Submissions, which submission is extracted below:

8. The Plaintiff relies upon language used by Defendant is not evidence that constitutes a threat of violence of a kind that falls within s10(1A)(a)(iii), but rather the language has the following characteristics:

i. The language used by the Defendant is the language of a delusion not violent extremism.

ii. The language comprises largely incomprehensible statements born of the delusions and disorganized thought processes of the Defendant when he is mentally unwell.

iii. Threatening language used by the Defendant is in pursuit of a personal agenda and not in pursuit of an ideological agenda.

iv. The language mirrors language used by Muslims everywhere and the suggestion of Dr Shanahan that it ‘mirrors the language used by a terrorist organisation’ should be rejected as having no probative value.

v. Violent language used in writings by the Defendant are mixed with other non-violent language.

vi. The language used by the Defendant is largely comprised of religious themes which includes references and warnings about violence and punishment by Allah (god). This language includes references of ‘judgement day’ themes associated with Islam and eschatological themes which are common to religion.

96. Counsel for Mr Ibrahim then expanded upon those contentions over some 18 further pages. I accept the submission of the State that, in substance, those submissions call for the wholesale rejection of Dr Shanahan’s opinion. I do not accept the contentions advanced by counsel for Mr Ibrahim, in that respect, partly due to my acceptance of Dr Shanahan’s evidence, but also because of the particular observations I will not make as to various aspects of Mr Ibrahim’s May Submissions (deriving from the submission in para 8, extracted above), together with the particular analysis I will later embark upon with respect to subject statements made by Mr Ibrahim that are referable to s 10(1A)(a)(iii) and or s 10(1)(c)(i).

97. Before turning to the particular statements, I will first direct attention to
    Mr Ibrahim’s May Submissions deriving from para 8 by reference to each of the sub-paragraphs (i)-(vi) (appearing therein), even though some proceed at a level of generality.

98. Mr Ibrahim’s submission as to para 8(i) consisted of the following propositions:

1. Whilst Mr Ibrahim used language that was threatening when he was mentally unwell, the language used by him does not advocate violence of a kind promoted by a person, group of persons or organisation, or ideology that supports terrorist acts or violent extremism. Rather, the threats are made in pursuit of a personal agenda. (I will return to the question of a personal agenda with respect to the submission under para 8(iii)). Thus, it was submitted that the Court could not be satisfied that the language used or threats made were of a character that was caught by the provisions of s 10(1A)(a)(iii).

2. Reference was made that there is no evidence of violent extremism (I will return to that submission by reference to the particular statements made by Mr Ibrahim below). Reliance was placed upon the opinion of
   Dr Dayalan, namely, that Mr Ibrahim did not hold any beliefs or commitments that increased his risk of engaging in violent extremism, although he has used religious beliefs to justify violence in his threats against perceived persecutors when acutely unwell. I have earlier dealt with why this evidence does not directly connect to whether Mr Ibrahim’s statements or acts fall within the scope of s 10(1)(c)(i) or s 10(1A)(a)(iii). Moreover, the Dayalan Report represents, in this respect, Dr Dayalan’s assessment of the risk of Mr Ibrahim engaging in violent extremism (as I will later discuss, Dr Dayalan considers the risk to be significant when Mr Ibrahim is mentally unwell). However, the opinion so expressed cannot be converted into an opinion simpliciter as to whether Mr Ibrahim falls within the scope of s 10(1A)(a)(iii) and s 10(1)(c)(i) of the THRO Act.

3. It was contended by Mr Ibrahim that a delusion did not reflect any true beliefs he might hold. Thus, such delusions are not consistent with
   Mr Ibrahim holding extremist violent views. It was contended that
   Dr Klamer’s evidence was that a delusion is not a true belief held by the person experiencing the delusion and was not indicative of
   Mr Ibrahim holding a belief or an ideological position. I have earlier dealt with why this contention and Dr Klamer’s evidence does not diminish Dr Shanahan’s opinion or significantly impact upon the resolution of the operation of the statutory test in this case.

4. It was contended that the language used by Mr Ibrahim did not transcend the character of the confused disordered thoughts of a mentally disturbed man who, because he is Muslim, happens to, at times, quote Qur’anic verses, verses which are commonly known and the subject of discourse amongst all who practice Islam. As Dr Klamer said in her evidence, “[w]hen people are experiencing those delusional beliefs … [it] wouldn’t be uncommon to see evidence of a range of, you know, comments and views and beliefs that don’t necessarily make sense together, yeah”. The difficulty with this submission is that the actual language used by Mr Ibrahim needs to be closely evaluated and in context (in the manner that the Court will undertake below by reference to the opinions of Dr Shanahan in respect of that language).

99. There are two further difficulties with the contention by Mr Ibrahim that the statements made by him were really borne of delusions or disorganised thought processes associated with a mentally unwell person as opposed to any statements which may gain traction under s 10(1)(c)(i) or s 10(1A)(a)(iii). This is because:

1. This Court has accepted on numerous occasions, statements may fall within the ambit of s 10(1)(c)(i) and/or s 10(1A)(a)(iii), even if they were made at a time when the person was suffering from symptoms of mental illness: see Dunn at [135]-[140] (per N Adams J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [124]-[125] (per
   Wright J).

2. There are a number of statements relied upon by the State which are plainly “comprehensible” and/or do not appear to be the product of any “delusions or disorganised thought processes”. Examples of this, as I will discuss later, include:

1. Mr Ibrahim’s letter to Ali Ibrahim in September 2014;

2. Mr Ibrahim’s letter Najwa Ibrahim;

3. Mr Ibrahim’s telephone call to Karen Ibrahim in August 2009; and

4. Mr Ibrahim’s letters to Alisha Kent in October 2017.

It is in that context that the whole of his writings should be assessed. Further, given the form in which s 10(1)(c)(i) and s 10(1A)(a)(iii) are cast – “any statement”, “a threat” – a single statement or threat of the relevant kind may suffice to bring a person within the scope of the statutory concept of a “convicted NSW terrorism activity offender”.

100. Mr Ibrahim then makes the submission at paras 15-51 of Mr Ibrahim’s May Submissions dealing with the question of whether the language used by Mr Ibrahim is Islamic eschatology. It was submitted that Mr Ibrahim suffers from schizophrenia and sometimes infuses his language with religious eschatological themes when making threats in pursuit of his personal agenda when in a deluded state.

101. Counsel for Mr Ibrahim advanced the following broad submissions in support of that contention:

15. The Defendant suffers from schizophrenia. He sometimes infuses his language with religious eschatological themes when making threats in pursuit of his personal agenda when in a deluded state.

16. Relevantly, Dr Eagle reports:

[55] Mr Ibrahim said he prayed regularly as expected by his religion. When asked about using drugs and alcohol, he said “that’s up to God to judge me for that. It doesn’t even say that about non-believers.” When asked what he meant by infidels, he said “non-believers. It’s not my job” to judge and then said “its like pagans.” He said “my religion says that Allah will punish them”.

[56] Mr Ibrahim said, “I will die for my faith but I don’t mean I’ll start killing people. I’ll leave that up to Allah. I don’t need to anyway. Allah will do it.” He further stated “they just won’t make it to heaven. I’m talking about the one’s that wrong me. I’m pretty sure they know what they done wrong. That’s why it hard to get my parole now” He said, “Allah will punish them and not get to heaven.” He said, “inflict punishment – death or hellfire.” When asked how he knew this, he said “my religion says that”.

[57] Mr Ibrahim practiced Ramadan. He said it was hard.

[58] Mr Ibrahim said he had always been “knowledgeable” about his religion. He said he learnt scripture from 10 years old. He said he would read the Qur’an during his childhood. He said “that’s me.” He added “I’m not doing the punishment. I don’t intend to harm anyone.” When asked if Allah communicated with him, he said ‘yeah”. He said that this occurred “anyway or though the body.” When asked if Allah(god) requested he do things, he said “he’s not asking me to do nothing.” He said Allah(god) would never do that because he “would do it himself”.

17. What the Defendant has said above to Dr Eagle and in the telephone call to his sister Manal Ibrahim on 17 February 2019, is born out by the nature of the writings in letters and on the cell wall – they are Judgement day themes where Allah(god) will bring about the punishment.

18. That the Defendant is referring to punishment by a God rather than man in an eschatological sense of judgment day concepts, is well illustrated in what the Defendant said in the ERISP he participated in on 23 February 2016 for the Robbery offence prior to his last incarceration. At the time he was assessed as being mentally unwell and a week before the ERISP, he had told his treating Psychiatrist that he “was getting out of control”.

19. During the ERISP the Defendant told the interviewing police that the police who stopped him “…put their life in danger” (A35). When questioned about this by the interviewers, the Defendant went on to describe that “a massacre” was going to happen (A38) and that, there was going to be a war between “us and youse” (A48). The Defendant is clearly delusional in the interview during which he describes, “The war’s gonna happen, no matter what happens” (A47) “between my army, and the world”(A49-50). He states, “I’ve got my own huge army” (A53), which he describes as being “from other parallel worlds” (A54). He is not referring to any army in this world.

20. Contrary to the political positions of Al’Qaeda and ISIS Islamic terrorist groups who promote violent extremism, the defendant describes his ally as being Israel (A56-58). This is inconsistent to an alleged supporter of either of the above terrorist groups.

21. That he is referring to God made punishments and not punishments to be inflicted by man in this world, is evident from his description of the war being “between truth and falsehood” (A 59-60). When asked if anyone was helping him he stated, “My God, Allah” (A69).

22. Significantly, the Defendant makes it very clear he is not threatening the police or anyone, he states repeatedly that what he is saying is “not a threat. It’s a warning.” (A 86, A 112 and elsewhere in the ERISP) and he makes a clear distinction between a threat and a warning, concluding that what he is talking about is a “prophecy”.

A130. All right, it’s a prophecy.

Q131. OK

A131. That’s it. It’s between truth and falsehood.

Q132. All right.

A132. I’m being straight up with youse. I’m not, I’m not threatening you. …

23. As in the ERISP example, the Defendant, when deluded, has referenced theological concepts relating to final events of history, the end of the world and Judgment day themes. He has not made direct threats to anyone and the evidence relied upon by the Plaintiff does not support that he was going to act in any way to commit a terror act or express violent extremism.

24. All the religious writings can be interpreted to mean that the Defendant believed that the people to whom he is referring will be judged and punished in the end, and that Allah (god) would make the decision on Judgement Day.

25. Many of the verses the Defendant has quoted are references to supernatural events where God will Punish those who defy Him on the Day of Judgement. This is eschatology with no practical bearing in the world we live in today.

[Footnotes omitted.]

102. Mr Ibrahim then submitted that the language in statements relied upon by the State from Dr Shanahan’s reports were words that are commonly quoted from the Qur’an and the language used by Mr Ibrahim was of an eschatological character. It was submitted, in that respect, that the language used did no more than mirror the language of the Qur’an and that no weight should be given to any suggestion advanced by Dr Shanahan given that the language is commonly used discourse in the Islamic world.

103. Springing from that submission, counsel for Mr Ibrahim then made a lengthy submission traversing parts of Dr Shanahan’s evidence as follows:

27. What Dr Shanahan has done, is to simply select extracts from the writings of the Defendant which refer to violence and prejorative [sic] language, however the Defendant submits that he does this out of context. For example;

1. Letter to Ali Ibrahim dated 22 September 2014

Prior to writing the following words;

‘A DIRECT ATTACK ON THIS COUNTRY IT’S A GOOD FEELING ATTACKING AND KILLING POLICE officers, prison guards, judges, solicitors, police prosecution and Government nurses etc. And they can’t do nothing about it I’m untouchable if you killa copper its life in jail’

Mr Ibrahim wrote the following;

PLOTTING AND PLANNING ON MY FILE. It says he went to the crisis unit because he was suicidal. That’s where they were trying to kill me they tried so hard they actually thought that they were gonna kill me and if they did they would of said or willing to say he commit suicide. And theres no inmates around their that’s where I attacked two of them in self-defense. They charged me with it 18 months later made up facts to cover their arses and convicted me. LAST LAGING MY CHARGES WERE ALL CORRUPTED THERE WAS CORRUPTION THROUGHOUT the case my charges were beatable they didn’t charge me to convict me it took 2 years for one of the briefs to served I was denied leal contact Both visits and phone calls it took me 3 years to plead I plead guilty because there was so much corruption in my case so much Heads involved they would stictched me up. Now I don’t like them and they don’t like me Because we are going to war and there going to loose.

Later in the same letter he states;

No Mercy for you cunts the same way NO mercy for my freedom your corruption costs yous your lives.

It is submitted that the above is consistent with a personal agenda and grievance held by Mr Ibrahim. It is words of a delusional man. It is context which should be given weight in assessing the words of Mr Ibrahim which is characterized by the Plaintiff as a threat of a kind promoted by a terrorist organization.

Another Example is the Letter to Najwa Ibrahim dated 30 September 2009

Where Mr Ibrahim writes the following;

EVERYONE KNEW MY CHARGES WERE CORRUPTED FROM DAY ONE MY PAROLE WAS CORRUPTED

Subsequently he writes;

YOU’S TRIED TO ALL KILL THE PROHPET OF ALLAH S.W.A YOUS ARE OFF YOUR FUCKEN HEADS VIOLENTS DEATHS NO-ONES GETTING AWAY SURATE AL FIL ESSPECT SURATE AL FIL ,KEVEN RUDD JULIA GILLIARD..

and subsequently writes;

MONA KHOWATI SPIKED MY DRINK SET ME UP…ALL OFFICERS THAT WERE TRYING TO KILL ME IN JAIL

At Exhibit 1, Page 181, Tab 24, he further writes;

NONE OF YOUS ARE GONNA MAKE MY CORRUPT CHARGES LOOK LEGIT OF MY PAROLE REVOCATION LOOK LEGIT NO ONES GETTING AWAY ALLAH S.W.A SHEHYEF KULSGEE IVE GOT ALLAG S.W.A, YOUS HAVE GOT NO ONE.

YOUS ALL KNEW MY REVOCATOIN OF PAROLE WAS CORRUPTEDMY CHARGES WAS CORREUPTED FROM DAY ONE. YOU’S CONCEIVED AN EVIL THOUGH YOUS ARE PEOPLE LOST IN WICKEDNESS. HELL IS YOUR ABODE

28. The above letters feature repeated themes of being ‘set up’, ‘killed in jail’ and ‘corrupt charges’ against Mr Ibrahim. It is a context of a personal grievance not in support of any ideology held by Mr Ibrahim.

29. Dr Shanahan agrees that he is not in a position to interpret the Qur’an and simply repeating something a particular extremist or terrorist group might repeat does not of itself support that the Defendant supports violent extremism.

30. Dr Shanahan agrees that his expertise does not extend to having expertise in interpreting the Qu’ran or Islamic theology. Further, the question of whether the language used, and statements made by the Defendant fall within the ambit of s 10 (1)(c) (iii), the Defendant relies upon the opinion of Dr Clarke Jones wherein he observed that whilst the Defendant has made several threats in his letters and in writing on his cell wall of which there are several examples, he reports:

1. Condition 25, it was submitted, is unnecessary for the management of the particular risk presented by Mr Ibrahim as he rarely drinks much alcohol. That submission was supported with reference to the Eagle Report; in which the expert noted that Mr Ibrahim reported never being able to drink much alcohol.

2. Further, it was contended that Mr Ibrahim’s mental health relapse has not been triggered by the use of alcohol. Rather, it was submitted, his mental health relapse is triggered by a change to his medication. Alcohol has not been involved in his previous offending behaviour. Condition 25, therefore, does not target this specific risk, but rather seeks to “unduly impose on his enjoyment of life and drink alcohol at his residence and at a licensed premise within the legal limit”.

3. As to condition 26, counsel for Mr Ibrahim submitted that it is also unnecessary for the management of the particular risk presented by Mr Ibrahim. Additionally, it was contended, it may have an adverse impact upon Mr Ibrahim as a result of excluding him from social get-togethers with his family and close friends who offer him important support.

397. The State pressed the conditions in the terms proposed. It was submitted that the conditions were required in the light of Mr Ibrahim’s long history of abusing illicit drugs and prescription medicines. The use of drugs is tied to deterioration in Mr Ibrahim's mental health condition, which is, in turn, tied to his risk of committing a serious terrorism offence. That submission was supported with reference to the evidence of Mr Bagley.

398. As to condition 27, counsel for Mr Ibrahim advanced the following submissions in opposition its imposition:

1. There is no evidence of Mr Ibrahim either:

1. having associated with any persons from any groups which might hold violent extremist views or support or engage in terrorist acts; or

2. having met with or supported any persons or groups engaged in terrorist acts – in Australia or overseas.

Hence, it was contended, there is no basis for considering that he is a risk of doing so in the future.

2. The condition is onerous on Mr Ibrahim and his family for enforcement of Mr Ibrahim’s obligations.

3. In operation this condition would prevent Mr Ibrahim from being around his family if they are consuming alcohol, unless he received approval from an enforcement officer.

4. Counsel for Mr Ibrahim once again placed reliance upon the potential adverse impact of the condition. It was submitted that the support from his family and close friends is the strongest way to mitigate any of defendant’s risk; in particular, it was noted, Mr Ibrahim had a strong relationship with his family, his ex-wife and his children. It was contended that the imposition of condition 27 could potentially isolate Mr Ibrahim from some of his support network if they are legally consuming alcohol.

399. The State’s alternative position, in relation to condition 27, was for the form of the condition imposed on the ISO, namely:

27. The defendant must not contact, attempt to communicate with, or otherwise associate or affiliate with people who he is aware, or should reasonably be aware, are consuming or under the influence of illegal drugs or alcohol, unless an Enforcement Officer approves the defendant to associate with persons consuming or under the influence of alcohol.

400. The State again relied upon the evidence of Mr Ibrahim’s a long history of abusing illicit drugs and prescription medicines and its submission advanced supporting the imposition of conditions 25-26.

401. As to condition 28, counsel for Mr Ibrahim sought to amend the condition to allow Mr Ibrahim to gamble with an approved fortnightly limit of $200. Counsel for Mr Ibrahim proposed the following wording: “the defendant be allowed to gamble with an approved fortnightly amount of $200.00. The defendant must not gamble beyond that limit, unless approved by an enforcement officer”.

402. The defendant submitted, in that respect, that gambling is a legal recreational activity that should not be taken away by this condition. The condition, it was contended, is “punitive in nature because it does not address or mitigate any presented risk shown by Mr Ibrahim”. By the proposed amendment, Mr Ibrahim sought to exercise his right to lawfully gamble.

403. As to condition 28, the State pressed the condition and, in that respect, relied upon evidence of Mr Ibrahim having engaged in excessive gambling at a time when his mental health deteriorated. Reference was made to the evidence of Mr Bagley:

63. The defendant has a vulnerability in terms of gambling. Increased gambling could put the defendant into a situation of financial distress and increase his risk of relapse into drug misuse and a deterioration of his mental health. This is of concern as he is currently unemployed and has no apparent means of financial support other than regular Centrelink payments.

404. Upon consideration of the evidence before the Court and the respective submissions of the parties, the Court made the following rulings (with reference to Ex 8):

1. Conditions 25 and 26: The State’s primary position, namely, the form of the condition set out in the Schedule.

2. Condition 27: The State’s alternative position, namely, the form of the condition imposed on the ISO.

3. Condition 28: The defendant’s position was adopted.

405. The reasons for those rulings are as follows:

1. As to condition 25, I do not accept the submissions advanced by counsel for Mr Ibrahim that the fact the defendant “rarely” drinks renders the condition unnecessary. That submission is not supported by the expert evidence before the Court. The court appointed experts, Dr Eagle and Dr Strum each identified the connection between alcohol and/or substance use and Mr Ibrahim’s previous offending. Reference was also made to the risks associated with relapse. In the face of such evidence, little weight may be placed upon the present fact of Mr Ibrahim’s limited drinking habits.

2. As to condition 26, the condition provides, in my view, an appropriate means of monitoring Mr Ibrahim’s activities associated with the risk factors of relapse. Additionally, I do not find the condition to be unduly burdensome. Should Mr Ibrahim find himself having need to attend a licensed premised, he may do so provided he seeks and obtains permission from his enforcement officer. This is necessary precaution to ensure the enforcement officer may effectively manage the relevant risk factors.

3. For the reasons set out in (1) and (2) above, the Court found the State’s alternative condition 27 to be appropriate in the circumstances of
   Mr Ibrahim.

4. As to condition 28, having regard to the evidence of Mr Bagley and the submissions of the State that Mr Ibrahim has in the past engaged in “excessive gambling at a time when his mental health deteriorated”, I find the regulation of that activity to be relevant to the enforcement officers ability to effectively monitor Mr Ibrahim, in particular, the risk factors associated with mental health and relapse. However, the complete ban of the activity is not required to effectively monitor those risks. The defendant’s proposed inclusion of an “approved fortnightly limit of $200” does not preclude effective monitoring by an enforcement officer and places a reasonable limit against which monitoring may be undertaken.

Part J: Psychological/Psychiatric Assessment, Counselling & Medical Treatment – Condition 36

406. Condition 36 as set out in the Schedule and proposed by the State was in the following terms:

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

407. The following evidence of the Drs Eagle and Dayalan is relevant to the consideration of condition 36:

1. Whilst Dr Eagle assessed Mr Ibrahim’s overall risk of engaging in violence justified by a religious ideology as “moderate”, she also commented that “[t]his overall risk is likely to increase in the context of limited access to appropriate support and risk management strategies in the community and it would likely reduce with effective risk management, appropriate levels of support and assertive mental health treatment”.

2. Dr Eagle also opined that due to Mr Ibrahim’s lack of insight, substance use disorder, and repeated history of non-compliance with treatment, he could be considered at high risk of relapse.

3. Dr Dayalan opined:

194. Mr Ibrahim poses a high risk of non-compliance with treatment especially his depot medication unless there are adequate external measures to ensure compliance. It is noted that community treatment orders and parole orders have not been effective in ensuring compliance in the community. He has indicated to his current treating team that he would like to cease his depot medication. Non-compliance with treatment is associated with high risk of deterioration in his psychotic symptoms and therefore will indirectly increase his risk of engaging in an act of violent extremism.

408. Mr Bagley deposed (with respect to conditions 35 and 36):

71. These conditions are necessary to guard against the risk that the Defendant might cease to comply with any pharmacological components of his mental health care plan (noting again that the Defendant has a long history of failing to do so). The conditions would allow enforcement officers to act quickly if the Defendant stopped taking any prescribed medication and there was a resulting increased risk to the community or the Defendant's ability to comply with his ESO. Enforcement officers with a specific and detailed knowledge of the Defendant's risk factors will be in a better position to respond immediately to mitigate any developing risk as opposed to medical professionals who may not necessarily be aware of the immediate consequences for community safety (and who would likely be more focussed on treating the Defendant's condition than on managing any terrorism related risk he might pose to the community).

409. Counsel for Mr Ibrahim opposed the condition as proposed and advanced the following submissions:

1. The obligation to comply with a CTO is sufficient and that the proposed condition would unnecessarily and inappropriately criminalise any failure by Mr Ibrahim to comply with a CTO or to take his medication or receive therapy.

2. The addition of this second layer of control may lead to confusion for Mr Ibrahim. The CTO alone should monitor his medication and communication about such medication. This condition may in fact exacerbate risks of deterioration of Mr Ibrahim’s mental health if he becomes confused about who is in charge of and/or who is the point of contact for his medication.

410. In reply, the State contended that the condition as proposed provides enforcement officers with a specific and detailed knowledge of Mr Ibrahim's risk factors. This means they are in a better position to respond immediately to mitigate any developing risk (as opposed to medical professionals, who may not be aware of the implications for community safety). That submission was supported with reference to the evidence of Mr Bagley.

411. Having regard to the evidence of the experts, in particular their respective opinions as to risks associated with relapse as well as Mr Ibrahim’s history of non-compliance, the Court accepted the submissions advanced by the State, in this respect. Furthermore, I note my earlier discussion regarding the distinctions between a CTO and an ESO.

412. Condition 36 was imposed in the terms proposed by the State.

Part L: Communication, Internet Use & Electronic Devices – Conditions 40-44

413. Condition 40-44 as set out in the Schedule and proposed by the State were in the following terms:

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

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

a. Usernames other than “Monzor Ibrahim”

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

c. Devices that have the ability to access the internet

d. Passwords (including encryption codes)

e. Applications (including instant messaging services)

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

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

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

414. Dr Eagle, relevantly, opined:

186.1. Seeker, user or developer of violent extremist materials (low): There is no information to suggest that Mr Ibrahim has sought or accessed violent extremist materials from any source.

…

186.7. Susceptibility to influence, control or indoctrination (low/moderate): Mr Ibrahim denied that he is susceptible to peer influence. In the context of relapses of his mental illness, and the increased intensity of persecutory beliefs that may fuel underlying perceived grievances and result in intensified religious beliefs, I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance.

…

195. Mr Ibrahim’s previous threats, letter writing and markings on the cell wall appear consistent with the disorganised thought processes often observed in those with schizophrenia and contain numerous references to psychotic symptoms such as bizarre persecutory delusions and referential beliefs (misinterpreting otherwise benign events or circumstances as having personal significance). His threats of violence appear, to some extent, to be inspired or justified by religious beliefs and fuelled by his delusional preoccupation. Dr Shanahan’s expert opinion that the language Mr Ibrahim has used is consistent with that used by Islamic extremist organisations suggests that Mr Ibrahim has had some exposure to such language and may be susceptible to influence, particularly during re-lapses of his illness.

415. Dr Dayalan, relevantly, opined:

212. I note the conditions included in the order sought are quite restrictive and if enforced for protracted periods of time may actually impede his psychosocial rehabilitation. Individuals with schizophrenia often have negative symptoms that impacts on their motivation to engage in social and occupational functioning. Any additional barriers to his engagement in activities to enhance his social and vocational skills will impact on his prospects of psychosocial rehabilitation.

416. Counsel for Mr Ibrahim opposed the imposition of conditions 40-44. The following submissions were advanced:

1. The conditions are “extremely burdensome” and could be perceived by Mr Ibrahim as “confirming his persecutory delusions that he is being controlled or closely monitored by the government”. This is likely to lead to Mr Ibrahim’s mental health being adversely affected rather than ameliorated. This does not mitigate any risks that he poses.

2. It was contended that there was “no evidence to suggest that Mr Ibrahim has utilised any electronic devices or at any time used the internet or social media for the purposes relating to terrorism or violent extremism”.

3. Further, it was submitted that Mr Ibrahim has denied any exposure to online extremist material or groups. Reference, in that respect, was made to the observations of Dr Eagle, namely, that “there is no information to suggest that Mr Ibrahim has sought or accessed violent or extremist materials from any source” (Eagle Report at para 186.1).

4. Reliance was also placed upon the evidence of Dr Dayalan, as extracted above.

417. The State pressed each of the conditions and submitted that they operate together to allow enforcement officers to monitor Mr Ibrahim’s associations and activities, including any contact with extremists. The State also relied upon a CSNSW Intelligence Report dated 5 October 2019 to contend that Mr Ibrahim “is also not a naïve user of electronic communications … Mr Ibrahim was able to co-ordinate a three way call for the purpose of obtaining funds to be transferred into various bank accounts”. It was also noted that condition 40 was a prescribed condition: s 29(1A)(m).

418. On balance, the Court accepted the position taken by the State that the conditions operate together to allow enforcement officers to effectively monitor Mr Ibrahim. Whilst I have had regard to the evidence of Dr Dayalan, who noted the potential impediment of such conditions upon his mental health if imposed for “protracted” periods of time, presently, I had found the compelling opinions of Dr Eagle as to the risks associated with relapse and her observation that “I am of the view that Mr Ibrahim would be susceptible to propaganda and indoctrination from violent extremist groups, where they appeal to a perceived shared grievance”. Further, Dr Eagle opined that Mr Ibrahim may be particularly susceptibility to such anti-social influence in times of relapse. I find the conditions to be an appropriate means of monitoring Mr Ibrahim so as to effectively manage those risk factors.

419. Conditions 40-44 were imposed in the terms proposed by the State.

Part M: Associations – Condition 51

420. Condition 51 as set out in the Schedule and proposed by the State was in the following terms:

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

421. As to the imposition of condition 51, the State once again relied upon the evidence of Mr Bagley. In relation to conditions 48, 50 and 51, he deposed:

95. These conditions are necessary to ensure that the defendant is not in associating with any person that may pose a negative influence in relation to extremist ideology, or drug or alcohol use.

422. Whilst neither conditions 48 or 50 were opposed by Mr Ibrahim, counsel for Mr Ibrahim sought a variation to the proposed form of condition 51, namely, “that the defendant is allowed to associate with Zohar Abdullah, the partner of the defendant’s sister Manal Ibrahim”.

423. Counsel for Mr Ibrahim further contended:

Mr Ibrahim should feel safe in his family home and this condition unnecessarily criminalises exposure to a family member in his own home. It is burdensome and should be amended in the way proposed to avoid this unnecessary infringement upon Mr Ibrahim’s associations within his own home.

424. The variation was opposed by the State.

425. Whilst the submission of Mr Ibrahim is understandable, noting the familial connection, namely, Mr Abdullah being his brother-in-law, in my view, in the circumstances, it is appropriate that such contact, at this stage, is initially limited. Further, by the terms of the condition, Mr Ibrahim may apply to his enforcement officer to seek permission to engage with Mr Abdullah. Thus, the condition includes sufficient flexibility should Mr Ibrahim seek to attend a family event in which Mr Abdullah may be present. It may be expected the condition will be applied in a constructive and practical manner.

426. In the result, the Court imposed the condition as proposed by the State.

Part N: Identity and Appearance – Conditions 55-56

427. Conditions 55-56 were set out in the Schedule and proposed by the State were in the following terms:

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

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

428. Mr Bagley, relevantly, deposed:

102. The appearance of the Defendant is essential for effective monitoring and being able to identify him easily in the community. A current photograph is essential.

…

104. This condition [56] limits the Defendant's ability to avoid detection through a change in appearance. A reduced ability to monitor the Defendant could expose the community to a risk of him committing a serious terrorism offence.

429. Mr Ibrahim opposed both conditions. It was submitted:

1. In the context of Mr Ibrahim’s mental illness and persecutory delusions, the conditions are unnecessary and burdensome.

2. Mr Ibrahim does not pose a flight risk and has not tried to disguise himself before. This condition is not directed at any specific risk posed by Mr Ibrahim and is merely unnecessarily controlling in nature.

430. In reply, the State contended:

1. The appearance of Mr Ibrahim is essential for effective monitoring and being able to identify him easily in the community, relying, in that respect, upon the evidence of Mr Bagley.

2. The conditions limits Mr Ibrahim's ability to avoid detection through a change in appearance. It was also submitted that any amendment to “without prior notice” would be pressed.

431. Both conditions are necessary for the purpose of monitoring Mr Ibrahim. They are not, in my view, unduly burdensome. The requirement that Mr Ibrahim be photographed within a week of the commencement of an order or following any significant change in appearance is plainly relevant to monitoring. Further, the related condition that permission be obtained prior to any significant change is, once again, plainly relevant to enabling the enforcement officer to effectively monitor Mr Ibrahim. Mr Ibrahim is not forbidden from changing his appearance, he must simply obtain approval prior to any drastic changes. Having regard to the evidence of Mr Bagley, I accept the submission of the State that such a condition is necessary in order to limit Mr Ibrahim’s ability to avoid detection through a change of appearance.

432. As such, the Court ruled that the form of conditions that should be imposed correspond to the primary position of the State.

ORDERS

433. The Court confirms its orders of 20 May 2021.

**********

Decision last updated: 30 June 2021