State of NSW v Elzamtur

[2019] NSWSC 186

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Elzamtur [2019] NSWSC 186
Hearing dates:	21 February 2019
Date of orders:	21 February 2019
Decision date:	21 February 2019
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Interim Supervision Order in accordance with Short Minutes.
Catchwords:	CIVIL LAW – Interim supervision order – expiration of supervision before proceedings finalised
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	State of NSW v Naaman (No 2) [2018] NSWSC 1329 State of NSW v Elomar (No 2) [2016] NSWSC 1040
Category:	Principal judgment
Parties:	State of New South Wales (Applicant) Bilal Elzamtur (Defendant)
Representation:	Counsel: A. Casselden SC with A Myklvedt (Crown) C McGorey (Defence)   Solicitors: Crown Solicitor One Group Legal (Defence)
File Number(s):	2018/368907

Judgment

1. I am dealing with an application for an Interim Supervision Order under section 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW).

2. I will say, at the outset, as will be obvious from the transcript, that in the particular circumstances of the present case, the defendant, Mr Elzamtur, who is represented by experienced counsel, Mr McGorey, and an experienced solicitor in the field, Mr Mohammad Chahine, does not oppose the making of the order. From that I understand that the position is taken that, given the relatively low threshold of proof appropriate for the making of a preliminary order, as opposed to a final order, there is no active contest that the evidence that has been read on behalf of the plaintiff is sufficient to demonstrate that, at the final hearing of this matter, the State is in a position to lead evidence which is capable of satisfying the requirements of the Act for making an Extended Supervision Order.

3. If that evidence is accepted by the trial judge as establishing the essential ingredients of the statutory cause of action, namely that: the defendant is an eligible offender within the meaning of section 20 of the Act who is currently in custody; the application for final relief has been made in accordance with the requirements of sections 20(b) and 23; and that I am actually persuaded, having reviewed the material relied upon for myself in chambers in accordance with the powers of the Court under the Civil Procedure Act 2005 (NSW), that the evidence is capable of satisfying the Court, to the requisite high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under the supervision under of an extended supervision order.

4. In expressing those conclusions, I acknowledge that, at the preliminary stage, no true evaluation of the strength of the evidence or the weight to be afforded it is required, or indeed appropriate. As I said, in the State of NSW v Naaman (No 2) [2018] NSWSC 1329 (at [48]):

“I think it is necessary to look at the allegations and the documentation put before the Court through the lens of the plaintiff's case and to take them at their highest when deciding whether the test articulated in section 27(b) has been made good in all the circumstances of the case."

5. Section 27, which I referred to at the commencement of these reasons, imposes two conditions for making an Interim Supervision Order. The first is that the offender's current custody or supervision will expire before the proceedings are finally determined. That condition is satisfied, in this case, because the defendant is currently in custody serving out the balance of term in respect of a conviction for a serious indictable offence. He had been released to parole, but that parole was revoked in November last year, with effect from the previous July, when he was arrested and charged with further serious offences.

6. The effect of the orders of the Parole Authority is that the term has been extended to expire in May of this year. However, there is a Parole Authority hearing tomorrow, I am informed, at which time the authority is likely to make a decision, one way or the other, about whether he should be released once more to parole.

7. In considering the first condition, it is germane to point out that there is evidence before me that, in January of this year, I granted conditional bail in respect of the new charges laid in November and, although the conditions I imposed are yet to be satisfied, I am informed by Mr McGorey that he is instructed that they can be satisfied if the Parole Authority releases the defendant to parole.

8. He will remain, if released to parole, under the supervision of the Parole Authority until May. I am uncertain whether his current custody will expire if he is re-granted parole before these proceedings are determined. Although I understand that dates for the final hearing of this matter have been tentatively fixed for 23 April 2019. But that may depend, in part, upon what happens tomorrow. Accordingly, it seems to me at least likely, at this interlocutory stage, that his supervision on parole may expire before these proceedings are finally determined. So, I am satisfied that first condition is satisfied.

9. I am also satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. I refer to, and follow, what Rothman J said about that test in the State of NSW v Elomar (No 2) [2016] NSWSC 1040. I think that the statutory language in paragraph (b) of paragraph 27 emphasises the purely provisional nature of the review of the material that is necessary at this stage before the Court makes the relevant order. I should say that, if those allegations are proved to the high degree of probability required under the statute at the final hearing, a finding will be made that there is an unacceptable risk in accordance with the language of section 20(b).

10. Although these proceedings involve very significant restrictions upon the liberty of a member of the community who is not charged with any particular offence to which those restrictions are referable, the proceedings are of their nature civil proceedings and, given what I have said about the nature of the issues that are put forward today by the parties, I think it is sufficient that I express myself in somewhat more taciturn terms than might sometimes be appropriate where there is a hot contest about whether an interim order should be made. It is not necessary for me to set out in detail, let alone in a comprehensive way, the contents of the material that has been read before me today.

11. I have already made an order that the plaintiff may proceed on the basis of an amended summons filed in Court today. That amended summons provides a form of order for interim supervision subject to specified conditions under s 29 of the Act.

12. Section 29 deals with, broadly, two categories of condition. The first category is such conditions as the Court considers appropriate, which are amplified by reference to paragraphs (a) to (t) of subsection (1). The second category consists of conditions which follow automatically or in a mandatory way, unless the Supreme Court orders differently, and those matters are dealt with in subsection (1A) at paragraphs (a) to (r).

13. Counsel and solicitors for the parties have conferred and agreed upon changes to the subsection (1A) conditions and amendments to the general suite of conditions sought by the State in matters of this type. So far as the subsection (1A) conditions are concerned, having reviewed the agreement of the parties in relation to them, as attached to the proposed Short Minutes of Order, I am satisfied that there is good reason for ordering differently, in the statutory language, and I propose to condition my orders in accordance with the parties' agreement.

14. Likewise, in relation to the additional conditions under section 29(1), I am satisfied that what is proposed is appropriate to the circumstances of this case and, to the extent to which there are deletions from what could be called the conditions one usually sees, again I am satisfied, having regard to the paramount consideration of public safety which runs through the legislation, that what is proposed should be accepted by the Court as being appropriate.

15. It is also a requirement of the Act under section 24(5) that, if satisfied that the matters alleged and the supporting documentation if proved would justify the making of an Extended Supervision Order, I must make orders for the appointment of expert witnesses in the areas of psychiatry or psychology to report to the Court on matters relevant to risk assessment and management in this case. I have already said that I am satisfied the material would justify the making of an Extended Supervision Order if proved at the final hearing and, accordingly, I will make the orders sought in that regard.

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Decision last updated: 04 March 2019