State of New South Wales v Naaman (No 2)

The State of New South Wales appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had dismissed the State's application for an extended supervision order against the respondent, Mr Naaman. The State contended that the primary judge erred in not being satisfied that the respondent posed an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

The central legal issues before the Court of Appeal were whether the primary judge had erred in dismissing the State's application for an extended supervision order under the *Terrorism (High Risk Offenders) Act 2017* (NSW). This required the Court to consider the construction of the Act, particularly the meaning of "terrorist act" and the threshold of "unacceptable risk" that an offender posed. The Court also had to determine the applicable standard of appellate review for such a decision, which was held to be the standard of correctness.

The Court of Appeal reasoned that the primary judge had correctly applied the statutory test. The legislation required a high degree of probability that the offender would commit a serious terrorism offence. The primary judge had found that this threshold was not met, and the Court of Appeal found no error in that assessment. The Court noted that the definition of "terrorist act" in the Act was specific and that the evidence before the primary judge did not establish a sufficient likelihood of the respondent engaging in conduct that would constitute such an act.

Consequently, the appeal was dismissed. The existing interim supervision order was set aside, and the State was ordered to pay the respondent's costs of the appeal.