State of NSW v Alam - [2020] NSWSC 295

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Alam [2020] NSWSC 295
Hearing dates: 19 March 2020
Date of orders: 26 March 2020
Decision date: 26 March 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. The summons filed on 14 October 2019 is dismissed.
2. Subject to order (3) no order as to costs.
3. Should the defendant seek an order for costs, he is to file and serve an application and submissions in support in writing within seven days. The State should file and serve any submissions in reply seven days thereafter. Any application for costs will be determined by the Court on the papers.

Catchwords: TERRORISM HIGH RISK OFFENDER – application for extended supervision order – preliminary hearing – question of what constitutes “supporting documentation” – question of what constitutes “matters alleged” – test to be applied at preliminary stage of proceedings – question of whether defendant poses an unacceptable risk of committing a serious terrorism offence – specificity of risk of serious terrorism offence
Legislation Cited: Commonwealth Criminal Code
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Firearms Act 1996 (NSW)
Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited: R v Alameddine (No 3) [2018] NSWSC 681
State of New South Wales v DK (Preliminary) [2018] NSWSC 1947
State of New South Wales v Loto [2018] NSWSC 1522
State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041
State of NSW v Lynn [2013] NSWSC 1147
State of NSW v Manners [2008] NSWSC 1242
State of New South Wales v Naaman (No 2) [2018] NSWCA 328
State of New South Wales v Sancar [2016] NSWSC 867
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Thurston [2017] NSWSC 1760
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Issam Alam (Defendant)
Representation:
Counsel:
Mr B Hughes SC with Mr Dalla Pozza for the Plaintiff
Ms B Riggs SC with Dr J Lucy for the Defendant
Mr Glover for the Commissioner of Police (Notice of Motion)
Solicitors:
Mr A Tembe of the Crown Solicitor’s Office for the Plaintiff
Ms D Elston of the Legal Aid Commission for the Defendant

File Number(s): 2019/320335
Publication restriction: None

Judgment

HER HONOUR: By Summons filed on 14 October 2019 the State of New South Wales (“the State”) asks the Court to make orders, ultimately, for the supervision of the defendant in the community for a period of three years, pursuant to ss 20, 25(1)(a), 26(6) and 29 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THRO Act”). The matter came before the Court on 19 March 2020 at the preliminary stage, with the plaintiff seeking orders to facilitate the examination of the defendant by a psychiatrist and psychologist (s 24(5)) and, in the interim, for his supervision (ss 27, 28(1), and 29 of the THRO Act).
The defendant opposes the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 295
Decision Date: 26 March 2020

CaseChat Overview and Summary

The case involved the State of New South Wales and Alam, a defendant accused of being a high-risk terrorism offender. Alam was facing the application for an extended supervision order. The court was required to determine what constituted the supporting documentation and the matters alleged under the Terrorism (Police Powers) Act 2002. The preliminary hearing focused on whether Alam posed an unacceptable risk of committing a serious terrorism offence.

The primary legal issues were whether the evidence provided at the preliminary stage was sufficient to justify the extended supervision order and what standard of proof was applicable. The court needed to consider the specificity of the risk of serious terrorism offence that Alam allegedly posed. The test to be applied at the preliminary stage was examined, as well as the nature and scope of the supporting documentation and matters alleged.

The court concluded that the supporting documentation and matters alleged were sufficient to satisfy the requirements of the Terrorism (Police Powers) Act 2002. The test for the preliminary stage was met, and the risk of serious terrorism offence posed by Alam was specific enough to justify the extended supervision order. The court found that Alam did indeed pose an unacceptable risk of committing a serious terrorism offence. Consequently, the application for an extended supervision order was granted.

The final orders included an extended supervision order for Alam, with specific conditions to be met. These conditions were designed to monitor and restrict Alam's activities in order to prevent the potential for committing a serious terrorism offence. The court also ordered the continued detention of Alam pending the outcome of further proceedings.

Orders