State of New South Wales v Naaman

[2018] NSWSC 1328

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Naaman [2018] NSWSC 1328
Hearing dates:	2 August 2018
Date of orders:	02 August 2018
Decision date:	02 August 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Admit annexure A to the affidavit of Jamie McLaughlin, affirmed on 1 August 2018
Catchwords:	CIVIL LAW – Preliminary hearing - application for interim supervision order - admission of material into evidence - objection - hearsay and source not identified - content capable of proving facts relevant to the question of unacceptable risk
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017 (NSW), ss 20, 27
Cases Cited:	State of New South Wales v Elomar (No 2) [2018] NSWSC 1034
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Mohamed Naaman (Defendant)
Representation:	Counsel: J Agius SC with C Melis (Plaintiff) T Edwards (Defendant)   Solicitors: Crown Solicitors for New South Wales (Plaintiff)
File Number(s):	2018/235779

EX TEMPORE Judgment

1. I am conducting a preliminary hearing as to whether an interim supervision order should be made in respect of the defendant under the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the Act”). The State of New South Wales commenced proceedings by way of summons filed yesterday, seeking as principal relief an extended supervision order.

2. The powers of the Court in relation to an interim supervision order are conferred by section 27 of the Act, which, so far as is material, is in the following terms:

The Supreme Court may make an order for the interim supervision of an eligible offender (called an ‘interim supervision order’) if, in proceedings for an extended supervision order, it appears to the Court:

….....

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.” (My emphasis.)

3. Mr Agius SC who appears with Ms Melis for the plaintiff has read an affidavit of his instructing solicitor, which annexes a print-out of an entry from police intelligence which refers to the defendant. The entry is dated 15 December 2017, and it was made at a time when the defendant was overseas, probably in Lebanon, in breach of his parole previously granted in November 2016. As part of the entry, the police officer records matters of belief on his part, including a belief that the defendant had previously travelled overseas on a false passport, for the purpose of fighting in Syria with a terrorist organisation.

4. Mr Edwards objects to the admission of that material into evidence.

5. Implicitly, he invokes the rule excluding hearsay material from proceedings, and substantially points out that in the absence of an affidavit from the author setting out the source of this information, it is impossible to treat the belief as more than a mere allegation, and its reliability must be, at the very best, extremely doubtful. I acknowledge there is force in Mr Edwards’ submission.

6. He also submits that, notwithstanding the language of s 27(b), mere allegation is insufficient. He argues that there must be some likelihood that the matters alleged can be proved at the final hearing before material can be received and taken into account at a preliminary hearing.

7. He has drawn my attention to a report prepared upon the defendant’s return from, apparently Lebanon, in May of this year, where border force officers reviewed his passport when he returned, noting that it had been stamped for Lebanon and Germany. The point that Mr Edwards makes is that this evidence apparently contradicts the belief of the police officer expressed in the document objected to, and demonstrates that he apparently travelled on his own passport.

8. Mr Agius counters this by explaining the State’s case is that the belief of the author of the document objected to relates to an earlier absence from Australia by the defendant.

9. It is not possible for me to resolve this matter satisfactorily in the context of a preliminary hearing. However, having regard to the decision of Rothman J in State of New South Wales vElomar (No 2) [2018] NSWSC 1034, I accept the interpretation of s 27 his Honour suggested in that judgment, and which Mr Agius impliedly relies upon.

10. It is sufficient for the admissibility at this preliminary stage that allegations of fact which, if proved at the final hearing, would justify the making of an extended supervision order are tendered by the State. That is to say, in the context of this legislation, mere allegations contained in supporting documentation are admissible, provided the content of those allegations can be seen to be relevant to a matter which will be in issue at the final hearing.

11. It would seem to me that, whatever the reliability of the information contained in the document, its content is relevant to the question of whether the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence, if not kept under supervision. This is the question referred to in s 20(d) dealing with the Court’s powers to make an extended supervision order.

12. Mr Edwards also argued that it needs to be shown that the allegations of fact are capable of being proved. Whereas I have some sympathy for that submission, it does seem to me that the material in the document objected to supports an inference, which I draw only for present purposes, that there is likely to be evidence led at the final hearing concerning the content of the document and if that evidence is accepted, it is capable of proving facts relevant to the question of unacceptable risk, and in the circumstances I will admit annexure A to the affidavit of Jamie McLaughlin, affirmed on 1 August 2018.

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Decision last updated: 29 August 2018