State of NSW v Mathers

Case •

[2019] NSWSC 7

•

16 January 2019

No judgment structure available for this case.

Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: State of NSW v Mathers [2019] NSWSC 7
Hearing dates: 11 December 2018
Decision date: 16 January 2019
Jurisdiction:Common Law
Before: Button J
Decision:

(1) An order pursuant to s. 38(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”):
appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric or psychological examinations, as the case may be, of the Defendant, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court;
(2) An order:
(a) pursuant to ss. 27 and 28(1) of the Act, that the Defendant be subject to an interim supervision order for a period of 28 days from the date of the order (“the interim supervision order”); and
(b) pursuant to s. 29 of Act, directing that the Defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.
(3) An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords: HIGH RISK TERRORISM OFFENDER – preliminary hearing – application for Interim Detention Order (IDO) and mandatory examinations – alternative application for Interim Supervision Order (ISO) - Sovereign Citizen Movement – discussion of statutory preconditions for making an order of any kind – discussion of whether IDO or ISO should be imposed
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Terrorism (High Risk Offenders) Act 2017 (NSW)
Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
John Mathers (pseudonym) (Defendant)
Representation: Counsel:
B Hughes SC & J Harris (Plaintiff)
M Ierace SC & P Coady (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2018/367595
Publication restriction: Pseudonym adopted for the defendant

Judgment

Background

  1. Mr John Mathers (a pseudonym for the defendant) was born in October 1972, and accordingly is 46 years of age. He has spent most but not all of his life living in the Newcastle area. As a teenager, his unfulfilled ambition was to join the RAAF. Instead, he studied jewellery-making at TAFE, and until recently rented premises in the Newcastle suburb of Charlestown in which he conducted a small business in that regard, and also resided.

  2. In the early part of 2017, he commenced a dispute with the real estate agent for the lessor of those premises. In a nutshell, his complaint was that mould was growing inside the rented premises, and it was affecting his health. He put forward an odd explanation as to how the mould may have got there. He hung plastic sheets around the property, in an effort to protect himself from possible infection. His emails and texts to the real estate became more and more vitriolic.

  3. Eventually, in May 2017 police were asked to check on the welfare of the defendant. They entered the premises and spoke to him. The living quarters of the defendant have been described by police as more like those of a teenager, rather than a middle-aged man. In the premises they found quite a few prohibited weapons, including two torch batons, a number of knives (some of them ceremonial in appearance, but no less sharp for that), and a Chinese made air gun that could readily be mistaken for a handgun capable of firing a deadly projectile.

  4. They also found that the defendant had downloaded from the internet a very large volume of written material, and printed off some of it. Much of it was to do with the so-called Sovereign Citizen Movement (the Movement).

  5. To interpolate a concise description of the Movement based upon the expert and other evidence placed before me, it originated in the United States of America, and is based on a conception of law that rejects the current United States polity as an imposed fraud that has unlawfully and immorally superseded the original ideas underpinning the American Revolution of 1776 and the US Constitution of 1787.

  6. Its practical thesis is that individuals are entitled to resist the enforcement of laws made pursuant to that alleged fraud. For example, the Movement began as a rejection of the proposition that a citizen of that country is required to pay federal income tax.

  7. The Movement has its idiosyncratic features quite apart from its fundamental thesis, an example of which is the adoption of a particular form of punctuation, which is preferred by adherents of the Movement to standard English usage.

  8. In accordance with its underlying thesis, there has been on occasion violent resistance in the United States by its members to the enforcement of federal and state law, including by way of the murder of police officers and the attempted murder of judges.

  9. The Movement has been connected to other aspects of political thought within that country, including survivalism (which involves preparedness for a post-apocalyptic world in which organised society has been destroyed), and armed militias (whereby US citizens take it upon themselves to form armed groups, often with an eye to defending not only the constitutional right to bear arms, but also a libertarian conception of the way in which the founding events and documents of that nation are said to mandate the current organisation of its society).

  10. Some of the ideas of the Movement have been transposed to other countries, including Australia, despite its focus on particular aspects of the history of the United States.

  11. Returning now to the search conducted by the police, other downloaded items discovered in the premises of the defendant at that stage included a lengthy article about how to make booby traps. It was placed in evidence before me, and appears to be very out of date; in my opinion, it could date from the Korean War or even earlier.

  12. There was also located a lengthy document about how to manufacture plastic explosives.

  13. In similar vein was a document entitled the “Guerilla’s Arsenal”.

  14. Another document, seemingly prepared by an Australian, and to do with Australian politics, described itself as a “brief of evidence” accusing a former Australian Prime Minister of being “attainted with treason”, and is redolent of the thinking of the Movement.

  15. So is another document authored by a person who describes himself as “Johnny Liberty”.

  16. Other, even more radical, documents were also located. Some of them speak of Queen Elizabeth II as having been convicted by a European court of child abuse. Others speak of satanic conspiracies, and refer to the demon “Moloch”. Yet another shows a distressing image of what appeared to be mutilated human bodies being fed to children at a formal dinner (I presume that it had been “photo shopped”).

  17. The police also located scribbled documents in the handwriting of the defendant. Some of them are illegible, some unintelligible. But some of them appear to constitute efforts to understand the statutory and common law of this country. It is possible that some of the writings relate to the dispute about the mould, because they seem to make reference to offence-creating provisions to do with the infliction of a grievous bodily disease.

  18. After the search of May 2017, police made enquiries about the online and other activity of the defendant. They discovered that, in November 2016, the defendant had purchased a commercial pressure cooker on a website that facilitates private buying and selling (the asserted relevance of that will become apparent shortly).

  19. In January 2017, the defendant had downloaded from the internet blueprints whereby a private individual is said to be able to manufacture plastic firearms by use of a 3-D printer. One of them was for an airgun that, according to the blueprints, looked very much like a real weapon. But others were plans for weapons that are indeed real: a plastic sub-machine gun, a carbine rifle well-known to be used by the United States Army, and a plastic semi-automatic pistol (I interpolate again that it is well known that the highly regarded Glock semi-automatic pistol is largely made of plastic).

  20. On 6 February 2017, the computer of the defendant was used to access a YouTube video entitled “See the Difference Between Pipe Bombs and Pressure Cooker Bombs”.

  21. Separately, on 3 March 2017 two letters were discovered at the parliamentary office of an opposition member of the New South Wales Parliament (the MP). On the outside of each envelope, the following typewritten words appear verbatim:

“To The Minister

You are in TREASON ,,, you will be hung untill you are dead

No Mercy , No Prisoners

You are scum”

  1. Inside were located typewritten documents that provide a purported analysis of the Australian Constitution. That analysis is consistent with the approach of the Movement to such matters.

  2. The MP was understandably very distressed by the discovery, and the police were of course contacted. In due course, they located a DNA profile on adhesive tape attached to one of the envelopes that was consistent with the profile of the defendant.

  3. As a result, he was charged with the following offences: sending a document threatening death or grievous bodily harm; two counts of possessing or using a prohibited weapon without a permit; and possessing an unregistered firearm, in the form of a pistol.

  4. The defendant was granted bail. However, in August 2017, he failed to appear in answer to that bail, and was subsequently arrested and bail refused.

  5. In due course, the defendant pleaded guilty to all offences. On 21 February 2018, he was convicted and sentenced to imprisonment in the Local Court. The aggregate sentence imposed comprised a head sentence of 1 year 4 months, with a non-parole period of 12 months, each to date from 19 September 2017, the former to expire on 18 January 2019, and the latter to expire on 18 September 2018.

  6. Meanwhile, in October 2017, the digital material containing the blueprints for the firearms had been seized by police. It took quite some time for that material to be analysed, but after it was, the defendant was charged in November 2018 with offences arising from those downloads. He has always been bail refused on those charges.

  7. In the meantime, it had been proposed that he be released at the end of his non-parole period on 18 September 2018. Once the nature of those downloads came to light, however, the State Parole Authority intervened and took steps to ensure that the defendant would not be released to parole.

  8. His custodial position as at the date of the hearing before me, 11 December 2018, was therefore that his current sentence will expire in its entirety on 18 January 2019. He is also bail refused on the most recent charges, but of course could lodge a bail application (either to the court of charge, or to this Court) at any time.

Application

  1. It is in that context that the State of New South Wales (the plaintiff) has sought preliminary orders against the defendant pursuant to the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act).

  2. The primary position of the plaintiff is that I would impose an interim detention order (IDO) of 28 days from the date of its making, along with an ancillary order mandating the preparation of psychiatric and psychological reports about the defendant. The secondary position of the plaintiff is that I would impose an interim supervision order (ISO), of the same length, along with the same ancillary order.

  3. The position of the defendant is as follows. He resists the proposition that the statutory preconditions for the making of an order pursuant to the Act have been established. If I reject that primary proposition, his secondary position is that the evaluative tests for the making of an ISO have been established. His position however is that an IDO should not be made, on the basis that, on all of the evidence placed before me, an ISO would be sufficient.

  4. Above and beyond the matters of background that I have summarised above, the plaintiff relied upon a risk assessment report prepared by a specialist psychologist employed by a section of the New South Wales Department of Corrective Services directed towards countering extremism. In a nutshell, the report assessed the risk of the defendant reoffending generally as low, but the risk of him reoffending by way of an act of political violence as high. It spoke of the need for treatment of the “identified mental health concerns” pertaining to the defendant. And it also spoke of the defendant having attempted dishonestly to manipulate the psychometric testing that the psychologist had administered.

  5. The defendant placed before me an affidavit of his solicitor and of his father. In a nutshell, the former suggests alternative interpretations of items obtained or downloaded by the defendant. The latter explains that the defendant enjoys the love and support of his parents, who would offer him accommodation if he were released from custody. It also speaks of the defendant having been quite open with his father about the purchase of the pressure cooker.

Pre-conditions to making an order established?

  1. I turn first to analyse the threshold question of whether the statutory preconditions for the making of any order pursuant to the Act have been established.

  2. Because the primary position of the plaintiff is that I should make an IDO, and its ultimate position is that this Court would impose a Continuing Detention Order (CDO), I shall consider the applicable preconditions in that regard. The first of them are to be found in s 34 of the Act. It is relevantly as follows:

34 Supreme Court may make continuing detention orders against eligible offenders if unacceptable risk

(1) The Supreme Court may make an order for the continued detention of an eligible offender (called a continuing detention order) if:

(a) the offender is a detained offender or supervised offender (or was a detained offender or supervised offender at the time the original application for the order was filed), and

(b) an application for the order is made in accordance with this Part, and

(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, and

(d) the Supreme 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 in detention under the order.

…

  1. There was no dispute between the parties that the defendant is a detained offender, as defined in s 33 of the Act, for the purposes of s 34(1)(a) because, as at the date of the filing of the summons and indeed the hearing, he continued to serve the sentence of imprisonment, by way of its parole period, to which I have referred above.

  2. Nor was it disputed that the application had been made pursuant to Part 3 of the Act, in accordance with s 34(1)(b) thereof.

  3. Senior counsel for the plaintiff also relied upon s 34(1)(c)(iii), and submitted that the defendant is a “convicted NSW terrorism activity offender”. That leads one to the definition of that concept to be found in s 10 of the Act, which is relevantly as follows:

10 Convicted NSW terrorism activity offender

(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:

(a) the offender has at any time been subject to a control order,

(b) the offender has at any time been a member of a terrorist organisation,

(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.

(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

(b) an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following:

(i) networking or communicating with the person, group of persons or organisation,

(ii) using social media sites or any other websites to communicate with the person, group of persons or organisation.

(2) Subsection (1) (b) and (c) apply regardless of whether or not the eligible offender has been convicted of an offence for the conduct concerned (whether in Australia or elsewhere).

(3) In this section:

terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.

  1. Again, there was no dispute before me that the defendant, at the time of the hearing, was serving a sentence of imprisonment for an indictable offence against the laws of New South Wales, for the purposes of s 10(1) of the Act.

  2. Senior counsel for the plaintiff explained that he did not rely upon s 10(1)(a), because the defendant has never been subject to a control order. Nor did he submit that the defendant has at any time been a member of a terrorist organisation, and accordingly he did not rely on s 10(1)(b). Finally, nor did he rely upon any of the matters to be found in s 10(1)(c)(ii) of the Act.

  3. Senior counsel submitted that the defendant had previously made a statement advocating support for any terrorist act or violent extremism, in accordance with s 10(1)(c)(i) of the Act. He relied for that proposition upon the sending of the envelopes with their contents to the MP that I have described above.

  4. He explained that, in the circumstances of this case, he further relied upon s 10(1A)(a)(iii) of the Act. He submitted that the particular variant within that sub-paragraph upon which he relied was the proposition that the defendant, by way of sending those letters, had made a threat of violence of a kind that is promoted by an ideology (that is, the Movement) that supports violent extremism.

  5. Delving more deeply into s 10(1)(c)(i) in order to analyse whether the proposition of the plaintiff can be sustained, the phrase “terrorist act” is defined in s 4 of the Act to have the same meaning as it does in Part 5.3 of the Commonwealth Criminal Code (the Code). The definition in s 100.1 of the Code in its entirety is as follows:

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.

…

(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.

(4) In this Division:

(a) a reference to any person or property is a reference to any person or property wherever situated, within or outside Australia; and

(b) a reference to the public includes a reference to the public of a country other than Australia.

…

  1. Turning to the first part of the statutory structure upon which senior counsel for the plaintiff relies – that is, the proposition that the defendant had previously made a statement advocating support for a terrorist act – I do not accept that submission, for the following reasons.

  2. I do accept that, by sending the two letters to the MP, the defendant was advocating support for an act that causes serious physical harm to a person, in the form of a person being hanged (s 100.1(2)(a) of the Code).

  3. And I also accept that the words written on the exterior of the envelopes advocated support for the infliction of such harm to be accompanied by an intention to advance an ideological cause; namely, that of the Movement (s 100.1(1)(b) of the Code). I say that because the phraseology adopted by the defendant is redolent of the themes and terminology of the Movement.

  4. But I do not accept that any of the preconditions to be found in s 100.1(1)(c) of the Code have been established. That is because I am not satisfied on the evidence that that the sending of the threatening and frightening letters to a member of the opposition party in the New South Wales Parliament was of itself a statement advocating support for an action (that is, death by hanging) accompanied by an intention to coerce or influenced by intimidation any government, whether state, federal, or foreign.

  5. To expand on that analysis a little, although the victim of that matter was a MP, I do not believe it can be said that a person who intends to frighten or disturb or distress an opposition member of Parliament is intentionally coercing or influencing by intimidation a government. Although that concept is not defined in the definitions section of “Part 5.3 – Terrorism” of the Code, and although I accept that “government” is a protean concept, I do not accept that sending such a letter to an opposition member of the New South Wales Parliament is ipso facto within the sub-paragraph.

  6. In other words, I do not accept the oral submission of senior counsel for the plaintiff that the Parliament of a polity is to be equated with the government of the same polity. In referring to the latter, the legislation in question is surely referring generally to the Executive branch, not to the legislature or its members.

  7. Separately, there is no other convincing evidence of the necessary intention on the part of the defendant, apart from the envelopes and their contents. And whilst I have not overlooked the fact that the documents were addressed to “The Minister”, nor the fact that a Minister is a member of the executive government, I do not believe that one can infer that the defendant appreciated that reasonably subtle difference, and thereby evinced an intention to coerce or influence a government in mistakenly addressing the opposition MP as a Minister.

  8. Nor do I believe that the preconditions contained in s 100.1(1)(c)(ii) of the Code, which speak of an intention to intimidate the public or a section of the public, have been established. That is because I believe that that sub-paragraph is directed towards intimidation either of the Australian public as a whole, or a segment thereof that is made up by a number of people who share a characteristic (by way of completely hypothetical examples, such as persons who attend football games, or persons who work in factories, each of whom could be intimidated by a threat to detonate IEDs at a number of such locations). But I do not believe that the concept of “a section of the public” can be stretched so far as to apply to a single individual, even when that person is a member of Parliament.

  9. In short, I do not believe that the plaintiff has established for the purposes of s 10(1)(c)(i) of the Act that the defendant has previously made a statement advocating support for any terrorist act.

  10. I turn now to consider whether there is evidence that he has done so with regard to any violent extremism.

  11. As I have said, the other basis upon which senior counsel for the plaintiff submitted that a necessary precondition for the making of an order had been established was as follows. In accordance with s 10(1)(c)(i), he submitted that the defendant, by sending the envelopes, had previously made a statement advocating support for violent extremism. And he relied upon s 10(1A)(a)(iii) for the proposition that the defendant had made a threat of violence of a kind that is promoted by the Movement, and the Movement supports violent extremism.

  12. It is noteworthy that the phrase “violent extremism” is not defined in the Act.

  13. Turning to my determination of the initial aspect of this question, on the evidence placed before me, I think that there is a real question as to whether or not the threat of violence made by the defendant by way of what was typed on the exterior of the envelopes is promoted by the Movement. I also think that, on the evidence, there is a real question whether it has been established that the Movement supports violent extremism. I think that both of those propositions are questionable because, although there have undoubtedly been violent interactions between adherents of the Movement in the United States, and, elsewhere and government functionaries (such as police officers) seeking to enforce the laws of those governments, the legitimacy of which is not accepted by the adherents of the Movement, it is not clear to me that the Movement actively promotes violence, or explicitly supports violent extremism. And although one of the documents downloaded by the defendant was authored by a person who is to be understood as part of the Movement, and that document speaks of (at the least) threats of violence against police officers, I am not satisfied that that approach can be ascribed to the Movement as a whole, or as a general proposition.

  14. In short, I am not satisfied that the sending of the envelopes falls within s 10(1A)(a)(iii) of the Act.

  15. That is not the end of the matter, however, because the contents of that sub-paragraph are merely included within the concept of advocating support for violent extremism; they are not definitive or exclusive of it.

  16. Returning now to s 10(1)(c)(i) of the Act more generally, can it be said that by sending the envelopes with their contents, including what was typewritten on their exterior, the defendant made a statement advocating support for violent extremism? I consider that that more general question must be answered in the affirmative, for the following reasons.

  17. In summary, they were sent to a serving MP; they spoke of that person in derogatory terms; they spoke of her having committed or committing treason; they spoke of her being hanged seemingly as a form of capital punishment for that offence; and they spoke of her being denied mercy or a sentence of imprisonment.

  18. In my opinion, the proposition that an MP has been somehow judged to be guilty of treason in her absence must be assessed as an extremist one; the “sentence” purportedly passed of death by hanging is unquestionably violent; and by baldly and insultingly conveying the “facts” of the conviction and sentence to the MP, I consider that the defendant has made a statement advocating support for those communicated propositions.

  19. In short, having had a chance to reflect on the statutory structure, I believe that the plaintiff has established at least one of the prerequisites for making an order to be found in s 10 of the Act. It follows that I do not accept the primary proposition of senior counsel for the defendant in resistance to the making of any order.

Central question

  1. That means that the application turns on the central evaluative fulcrum to be found in s 34(1)(d), s 38(5), (6), and (7), and s 41 of the Act. The former is extracted above, and the latter two are as follows:

38 Pre-trial procedures

…

(5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the eligible offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the eligible offender to attend those examinations.

(6) Without limiting subsection (5) (a), the Supreme Court may also make orders appointing any other relevant experts to furnish reports to the Supreme Court in respect of the eligible offender on specified matters.

(7) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application.

…

41   Interim detention order

The Supreme Court may make an order for the interim detention of an eligible offender (called an interim detention order) if, in proceedings on an application for a continuing detention order, it appears to the Court:

(a)  that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)  that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.

  1. As has been said many times about the (similar but not identical) Crimes (High Risk Offenders) Act 2006 (NSW) (the HRO Act), that test is founded on the potentiality of the evidence as it may appear subsequently to another judge of this Court, and is not inherently overly rigorous.

  2. Before discussing my evaluation of that test, however, I record that the definition of the phrase “serious terrorism offence” (which, as has been seen, is a central part of s 34(1)(d) of the Act) is to be found in s 4 of the Act as follows:

serious terrorism offence means an offence against Part 5.3 of the Commonwealth Criminal Code for which the maximum penalty is 7 or more years of imprisonment.

  1. It would not be practical for me to extract in this judgement all of the offences in that Part of the Code that fall within that definition. Suffice to say I understood the submission of the plaintiff to be that the asserted unacceptable risk is that the defendant could commit a serious terrorism offence to do with a “terrorist act” as defined, and to be found in Division 101 of that Part of the Code, as opposed to an offence to do with “terrorist organisations” to be found in Division 102 of the Part, or an offence of “financing terrorism” to be found in Division 103 of the Part. That focus leads one back to the definition of a “terrorist act”, including a threat thereof, to be found in s 100.1 of the Code, and which I have already discussed in some detail.

  2. The following concise analysis is undertaken in the context of senior counsel for the defendant, as I have said, having advisedly conceded that, if I were satisfied of the statutory preconditions that I have discussed at some length above, it would not be inappropriate for me to make an order (though, as I have also said, his position was that it should be an ISO, not an IDO).

  3. A number of aspects of the evidence placed before me, bearing in mind the contingent nature of the test that I am being asked to apply, satisfy me that it has been established.

  4. First, there is ample evidence that the defendant is at the least influenced by the ideas underpinning the Movement. Those ideas are unusual, idiosyncratic and inherently antisocial, in the sense of rejecting the fundamental propositions underpinning the current organisation of Australian society.

  5. Secondly, quite apart from his plea of guilty and subsequent conviction and sentencing, there is ample evidence that the defendant sent a frightening and bizarre threat of violent death to a member of Parliament.

  6. Thirdly, there is strong evidence that he is not merely interested in alternative conceptions of society as a theoretical or philosophical exercise. To the contrary, he has also accessed and downloaded material about inflicting death or serious injury in a military or quasi-military setting.

  7. Fourthly, it is true that a possible alternative rational hypothesis for the downloading of the blueprints for making plastic firearms is the creation of metal jewellery that features miniature models or casts of such items. But the downloads cannot be seen in isolation: they were undertaken by a man who is influenced by very unorthodox ideas, who has downloaded other material about fatal violence in military settings, and who has been sufficiently motivated to make a bizarre threat of death to a person in Australian public life. And it is not to be forgotten that the downloads for blueprints for manufacturing firearms by way of a 3-D printer were undertaken by a man who had access to precisely that device.

  8. Fifthly, it is also true that a pressure cooker has many innocent domestic or business applications. And I accept that it is possible that such an item has an entirely legitimate use within a jewellery-making business. But seen in the context of all the other evidence – most importantly, the access to the Youtube video, the title itself of which speaks of IEDs able to be manufactured from such items – the possession of the pressure cooker is surely significantly probative, and of serious concern.

  9. Sixthly, I respectfully believe that the defendant may be suffering from some impaired psychiatric or psychological state. I say that because of (amongst other things) his reaction to the alleged “mould problem” in the premises that he was renting, the scribbled notes that were located, and the reference to the psychologist of the need for psychological intervention. Of course, the mere fact that a person may be, or may have been, suffering from a mental illness or psychological condition by no means establishes that he or she presents an unacceptable risk of an act of political violence. Nevertheless, in the context of all of the various acts and activities of the defendant, it plays its part in my satisfaction of the establishment of the contingent test.

  10. Seventhly and finally, it is true that, as my analysis above indicates, I am not satisfied that, by sending the letters to the opposition MP, the defendant actually committed a terrorist act in the past as defined in the Code. But here I am considering whether a subsequent judge of this Court could determine that, if not the subject of an order pursuant to the Act, there would be an unacceptable risk of the defendant possibly committing a terrorist act in the future, or threatening to do so. In my opinion, such a judge might well infer from all that the defendant has done so far that there is an unacceptable risk that he could very well proceed to do such a thing in the future.

  11. In short, I am satisfied that an order of some kind pursuant to the Act should be made.

IDO or ISO?

  1. Having come to the view that the contingent fulcrum test has been established, I turn now to the question of whether such an order should deprive the defendant of his liberty entirely for a time (pursuant to an IDO) or merely temporarily restrict it (pursuant to an ISO).

  2. Senior counsel for the plaintiff submitted that an IDO should be imposed until this litigation is determined. Underpinning that was the simple proposition that an ISO would be insufficient to protect the community, if the defendant were released on bail, or if the pending criminal proceedings were resolved in his favour, either by way of an acquittal or a non-custodial sentence.

  3. He emphasised that deadly weapons, at least in the form of knives, were located in the premises of the defendant; that the defendant saw fit to fail to answer his bail; that he was untruthful and manipulative when assessed by the psychologist; that his risk of committing an act of political violence has been assessed as being in the high range; and that, despite their good intentions, his parents are elderly and can hardly guarantee the safety of the community. And of course he relied upon the combined force of the all of the other acts of the defendant that I have outlined above.

  4. As a general proposition, however, senior counsel for the plaintiff accepted in his oral submissions that, whatever may be the complexities of the Act, I would not impose an IDO if I were satisfied that an ISO would be sufficient.

  5. I am so satisfied, for the following reasons.

  6. First, the defendant has never been convicted of an offence of physical violence in his life. That does not guarantee an absence of political violence or the threat thereof in the future, but it surely argues against it.

  7. Secondly, it would be remarkable if the pending criminal proceedings were resolved in the next 28 days. I believe that I can proceed on the inference that, were any order of mine of that duration to take effect, it would only be in the context of the defendant having been granted bail with regard to those pending proceedings.

  8. Thirdly, I proceed on the confident assumption that, if the defendant were to be granted bail on the pending changes, it would only be on the strictest terms. That would itself have a protective effect.

  9. Fourthly, the evidence placed before me establishes that his parents have come to appreciate the position their son is in, and have undertaken not only to have him live with them, but also to monitor him carefully.

  10. Fifthly, I think there is force in the submission of senior counsel for the defendant that, even assuming (for the sake of argument only) that the downloads and the obtaining of the pressure cooker were because of an interest in political violence, there is no evidence that the defendant actually commenced to try to manufacture a firearm or an IED or other item capable of killing or maiming in the many months when he was “off the radar” of the authorities.

  11. Sixthly, the overarching impression I have of this matter, based upon all of the evidence placed before me, is of an isolated and mentally unwell man who has been adversely influenced, and inflamed, by an unorthodox theory of society to which he has been exposed on the Internet. The picture revealed is not one of an organised, determined, well-resourced individual who is part of a much larger team or organisation, and who is well on the way to inflicting harm on Australian society for political reasons.

  12. It is true that his actions have seemingly gone beyond mere reading and reflecting. But I believe that the combination of inevitably extremely strict bail conditions, an extremely strict ISO, and undoubted police interest in the defendant generally, would sufficiently protect the community during the proposed interim period.

  1. Seventhly, and finally, it was noteworthy during the hearing before me that the defendant did not espouse the ideas of the Movement by way of, for example, shouting over the audio visual link that I had no jurisdiction whatsoever to make any orders affecting his liberty, or that the Supreme Court of New South Wales is an unlawful, tyrannical institution. To the contrary, his behaviour at all times was respectful and courteous. More generally, I think it quite possible that the experiences of being charged, refused bail after not being before court, sentenced to imprisonment, bail refused on further charges, and now being the subject of these civil proceedings, has led the defendant to appreciate the seriousness of the consequences of his actions, and to reflect upon the response of the legal system to those who might disobey it, or reject its authority.

  2. In short, in all the circumstances of this case, although I am satisfied that an order should be made pursuant to the Act as against the possibility that the defendant is granted bail on his pending charges, I am not satisfied that an IDO is required. On the evidence placed before me, I believe that an ISO would be sufficient.

Conditions of ISO?

  1. At the conclusion of the hearing, junior counsel for the defendant invited my attention to a number of the conditions of any ISO proposed by the plaintiff, and submitted that some of them should not be made. I shall discuss each of them briefly in turn, but in my opinion all of them are useful, and all should be made, not least because an important part of my rejection of the necessity for an IDO is my acceptance of the proposition that nothing less than an extremely rigorous ISO should be imposed.

  2. Proposed condition 10, which would impose a flexible curfew between 9 PM and 6 AM, was said to be nothing to do with any risk that the defendant may present. I respectfully disagree: in my opinion it is important that, unless permitted otherwise by the authorities, the defendant be leading a very quiet and curtailed life at home with his parents during the evening. I say that not only because I think there should be reasonable restrictions on the socialising undertaken by the defendant, bearing in mind that there are undoubtedly members of the Movement in Australia, and they might well be tempted to try to make contact with this man, and to influence him in person more than he has been influenced already by the Internet. I also say that because, as I have said, I suspect that this man may be mentally unwell, and I believe that (for example) late night imbibing in a hotel or a nightclub could exacerbate his condition.

  3. Proposed condition 12 was also disputed, whereby visitors to his home can be limited by the authorities. But for the reasons that I have given above, I believe that it is important that the authorities be in a position to limit the social contacts of the defendant, if necessary very strictly.

  4. Proposed condition 15, which restricts the places to which the defendant may go, was also said to be of no utility and therefore inappropriate. But in my respectful opinion it is an important part of restricting the access to the Internet of this man that he not be permitted to be out and about at unapproved locations away from home where such access may be available.

  5. The same may be said about proposed condition 18, which limits paid work, volunteer work, and education: many places at which such activities take place will be connected to the Internet, and in my opinion it is imperative that such access is not just limited but rigorously so.

  6. Finally, proposed conditions 25 to 29 were also disputed, on the basis that abuse of alcohol, prohibited drugs or unprescribed medication is nothing to do with the concerns in this case. As I have said more than once, however, I think that there is a real possibility that the defendant is psychiatrically or psychologically unwell, and it is well known that abuse of such substances can exacerbate such a condition; at the least, they can be disinhibiting, even of a person who is perfectly well.

  7. As I have said, an important part of my rejection of the need for an IDO is the proposition that the defendant will be subject to a very rigorous ISO (as well as strict bail). And quite apart from that general proposition, I am satisfied that each of the disputed proposed conditions is appropriate, and useful.

Reasons for other orders, some already made

  1. Finally, I record that, near the commencement of the hearing before me on 11 December 2018, I prohibited the promulgation of the real name of the defendant, pursuant to ss 7 and 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW). That was because I accepted the submission of his counsel that, due to the unusual nature of the application of the plaintiff; of the facts underpinning it; and of the latest charges, a potential trial by jury on those charges could be prejudiced by members of the jury panel being aware of all of the matters canvassed at the hearing before me. For the same reason, I have adopted a pseudonym in this judgment, and taken care not to refer to the real names of the parents of the defendant.

  2. On the other hand, I rejected a submission that I should similarly suppress the nature of the latest allegations; that seemed to me to be an unnecessary further step, and not to sit comfortably with the primary objective of open justice of which Parliament has spoken in s 6 of the same Act.

  3. Separately, at the same hearing, I also made orders restricting the promulgation of some of the evidence of the plaintiff by the defence team and indeed the defendant, with which they had been supplied in preparation for the hearing. I also restricted more broadly access to third parties to the exhibits that had been placed before me. In each case, the basis of the order was to prevent the details of instruction manuals about how to destroy and maim and kill being disseminated into the community by way of these proceedings, with the intention of stopping malign people having access to such information.

  4. Finally the parties were agreed that I should make order 7 in the summons of the plaintiff. Whilst not prohibiting access by third parties to the court file, it provides for an extra forensic step that needs to be fulfilled before that can occur. I understood the point to be that that will assist with the rehabilitation of the defendant, and that it is an order commonly made in applications such as these. I am content to adopt the joint position of the parties in that regard.

Orders

  1. I make the following orders:

(1) An order pursuant to s. 38(5) of the Terrorism (High Risk Offenders) Act 2017 (“the Act”):

appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric or psychological examinations, as the case may be, of the Defendant, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court;

(2)   An order:

(a) pursuant to ss. 27 and 28(1) of the Act, that the Defendant be subject to an interim supervision order for a period of 28 days from the date of the order (“the interim supervision order”); and

(b)   pursuant to s. 29 of Act, directing that the Defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

(3)   An order restricting access to the Court’s file in this proceeding such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

SCHEDULE OF CONDITIONS OF SUPERVISION

JOHN MATHERS (PSEUDONYM)

In these conditions:

“CSNSW” means Corrective Services NSW.

“EO” means Enforcement Officer or any other person supervising the defendant under the order.

“Extremist material” means:  

  1. material that a reasonable person would understand to be:

  1. directly or indirectly encouraging, glorifying, promoting or condoning terrorist acts; or

  2. seeking support for, or justifying, the carrying out of terrorist acts; or

  1. material that a reasonable person would understand or suspect to be produced or distributed by a terrorist organisation.

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

“Material” includes:

  1. any written or printed material;

  2. any picture, painting or drawing;

  3. any carving, sculpture, statue or figure;

  4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

  5. any computer data or the computer record or system containing the data; and

  6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Order” means the interim supervision order or extended supervision order under the Terrorism (High Risk Offenders) Act 2017 (NSW) to which the defendant is subject.

"Pat-down search" means a search of a person where the person's clothed body is touched.

“Serious offence” means an offence that is punishable by imprisonment for a term of 5 years or more.

“Terrorist act” has the same meaning as in Part 5.3 of the Criminal Code (Cth) and means an action or threat of action where:

  1. The action:

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

(b)   causes serious damage to property;

(c)   causes a person’s death;

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

(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:

  1. an information system;

  2. a telecommunications system;

  3. a financial system;

  4. a system used for the delivery of essential government services;

  5. a system used for, or by, an essential public utility; and

  6. a system used for, or by, a transport system; and

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

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

(a)   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

(b)   intimidating the public or a section of the public; and

(4)   the action is not advocacy, protest, dissent or industrial action that is not intended to cause serious harm to a person, cause a person’s death, endanger the life of a person, or create a serious risk to the health and safety of the public.

“Terrorist organisation” has the same meaning as it has in Division 102.1 of Part 5.3 of the Criminal Code (Cth) and means an organisation that is directly or indirectly engaged in, preparing, planning, assisting in or fostering the doing of a terrorist act and includes but is not limited to Islamic State / ISIS and Jabhat al Nusra.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of NSWPF and CSNSW until the end of the Order.

2.   The defendant must report to his EO as reasonably directed.

3.   The defendant must follow all reasonable directions by his EO.

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by his EO, and must not tamper with or remove such equipment.

Schedule of Movements

5.   The defendant must provide a weekly plan (called a schedule of movements) to be approved by his EO and this is to be provided three days before it is due to start.

6.   If the defendant wants to change anything in his schedule of movements once it is approved by his EO, he must tell his EO about the change 24 hours in advance, unless his EO approves a shorter period.

7.   The defendant must not deviate from his approved schedule of movements except in an emergency, in which case the defendant must notify his EO of the deviation as soon as possible and must comply with any reasonable direction received from his EO thereafter.

8.   The defendant must truthfully answer questions from his EO about where he is, where he is going and what he is doing.

Part B: Accommodation

9.   The defendant must live at an address approved by his EO and must notify his EO of any subsequent changes to his living arrangements.

10.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his EO.

11.   The defendant must allow his EO to visit him at his approved address at any time and, for the purposes of monitoring compliance with this Order, to enter the premises at that address.

12.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his EO.

Part C: Place and travel restrictions

13.   The defendant must not leave New South Wales without the approval of his EO.

14.   The defendant must surrender any passports held by the defendant to his EO.

15.   The defendant must not go to a place if his EO tells him he cannot go there.

16.   In addition to and without limiting any of conditions 13 to 15 listed above, the defendant must not go, without the prior approval of his EO, to any internet cafes, libraries, or other businesses which provide access to internet devices, either for payment or for no charge (other than employment agencies).

17.   In addition to and without limiting any of conditions 13 to 15 listed above, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal as indicated in the maps annexed to this schedule, or any point of departure for an international destination.

Part D: Employment, finance and education

18.    The defendant must not start any job, volunteer work or educational course without the approval of his EO.

19.    The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his EO.

20.    The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without notifying his EO.

21.    The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of his EO.

22.    The defendant must not transfer money or money’s worth to another person over the value of $500, whether by cash, cheque or electronic transfer, without the permission of his EO.

23.    The defendant must not transfer any funds outside Australia without the written permission of his EO.

24.    The defendant must not form any corporation, partnership, unincorporated association, register any business names or operate a business without notifying his EO.

Part E: Drugs and alcohol

25.   The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed by a medical practitioner.

26.   The defendant must not possess or use alcohol without the approval of his EO.

27.   The defendant must submit to testing for drugs and alcohol as directed by his EO.

28.   The defendant must not enter any licensed premises without the approval of his EO, except licensed restaurants and cafes.

29.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his EO, and must not discharge himself from such programs and courses without prior approval of his EO.

Part F: Non-association

30.    The defendant must not associate, contact or communicate with any persons specified by the EO.

31.   Without limiting condition 30, the defendant must not

  1. associate with or otherwise affiliate with any persons or with any organisations advocating support for engaging in any terrorist acts or violent extremism;

  2. associate with people who are consuming or under the influence of illegal drugs;

  3. attend, enter or seek to enter any custodial facility, or place where prisoners are held, or juvenile place of detention without prior approval of his EO;

  4. contact, attempt to communicate or otherwise associate with any person held in custody as a sentenced prisoner, or held on remand bail, or held in juvenile detention without prior approval of his EO.

32.   The defendant must inform his EO of the identity of any person with whom he does, or is likely to, regularly associate.

33.   If the defendant starts a relationship with someone, he has to tell his EO who is then permitted to disclose his criminal history.

34.   The defendant must obtain written permission from his EO prior to joining or affiliating with any musical band/group, club, gym or organisation, including any internet or mobile-based social networking service.

35.   The defendant must not engage in any act, or attempt to influence others to engage in any act, that would provide support for or promote extremist ideologies or acts of violence.

Part G: Weapons

36.   The defendant must not possess or use any of the following:

  1. a firearm, firearm part or ammunition within the meaning of s. 4 of the Firearms Act 1996;

  2. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

  3. a spear gun;

  4. without his EO’s approval, any article or device, not being such a firearm, capable of discharging by any means:

  1. any irritant matter in liquid, powder, gas or chemical form or any dense smoke; or

  2. any substance capable of causing bodily harm.

  1. any explosive substance intended, by the person having custody of the thing, to be used in an explosive device;

  2. a fuse capable of use with an explosive or a detonator, or a detonator, where the item is intended by the person having custody of the thing, to be used as a fuse or detonator for an explosive device, as the case may be;

  3. a knife without reasonable excuse;

  4. any other implement made or adapted for use for causing injury to a person;

  5. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property; or

  6. a laser pointer.

Part H: Vehicles

37.   The defendant must not, without the approval of his EO, purchase, hire or drive any vehicle:

  1. exceeding a gross vehicle mass of 3 tonnes; or

  2. the lawful driving or operation of which requires the driver or operator to have a licence class of Light Rigid, Medium-Rigid, Heavy-Rigid, Heavy Combination or Multi-Combination within the meaning of cl. 5(1)(c) of the Road Transport (Driver Licensing) Regulation 2017 (NSW).

38.   The defendant must tell his EO of the colour, make, model and registration of any vehicle registered to the defendant or that the defendant intends to drive.

39.   The defendant must notify his EO prior to applying for a driver’s licence.

Part I: Access to the internet and other electronic communication

40.   The defendant must give his EO a list of all devices, services and applications he uses to communicate with or to access the internet and advise his EO of any change to this list immediately. This includes phones, tablet devices, data storage devices or computers.  

41.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed in accordance with condition 40 above, and the device has been seen and approved for use by his EO.

42.   The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any passwords, pin codes, and pass codes used by the defendant [to access applications, social media platforms and other content over the internet] and the nature and details of the internet connection/s used by him, as directed.

43.   The defendant must provide his EO with all passwords, pin codes, pass codes used to access all electronic devices, electronic applications, all emails and all internet or electronic based communication platforms of any kind.  

44.   The defendant must provide any code or encryption used to receive or send any form of electronic data or any form of electronic communication in any form.

45.   The defendant must not use any coded or encrypted messaging application or service.

46.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of his EO, including but not limited to, use of internet-based email, instant messaging services, online community services and other telecommunications-based services including text and voice services.

47.   The defendant must provide consent for his EO (or any other person requested by his EO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.  

48.   The defendant must obey any reasonable directions by his EO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet and certain internet content.

49.   The defendant must not delete or alter any applications, email, text message, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device.

50.   The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with his EO.

Part J: Search and seizure

51.   If the EO reasonably believes that a search (of the type referred to in sub-paragraphs e to h below) is necessary:

  1. for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

  2. the welfare or safety of any member of the public or any other person;

  3. to monitor the defendant’s compliance with this order; or

  4. because the EO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the EO may direct, and the defendant must submit to:

  1. search and inspection of any part of, or any thing in, the defendant’s approved address;

  2. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;

  3. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

  4. search and examination of his person.

52.   For the purposes of the condition above:

  1. a search of the defendant means a garment search or a pat-down search; and

  2. to the extent practicable, a pat-down search will be conducted by a EO of the same sex as the defendant, or by an Officer of NSWPF or CSNSW of the same sex as the defendant under the direction of the EO.

53.   During a search carried out pursuant to condition 51 above, the defendant must allow the EO (or any other person requested by the EO) to seize anything found, whether in the defendant's possession or not, which the EO reasonably suspects will compromise:

  1. the safety of residents or of staff at the defendant's approved address;

  2. the welfare or safety of any member of the public or any other person; or

  3. the defendant's compliance with this order; or

  4. which the EO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

54.   The defendant must allow his EO, or another person the EO arranges, to search any phone, tablet device, data storage device or computer that he may use.

55.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 51-54 above.

Part K: Access to violent and extremist material

56.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to:

  1. material classified or material that would be classified as Refused Classification;

  2. material classified as R18+ (for reason of violence) unless permitted by the EO; or

  3. other material as directed by his EO for reasons related to concerns regarding violence; or for reasons related to his risk of committing a serious terrorism offence (including extremist material).

Part L: Personal details and appearance

57.   The defendant must not change his name from “John Mathers” or use any other name without notifying his EO.

58.   The defendant must not use any alias, log-in name, or a name other than “John Mathers” or use any email address other than those known to his EO under condition 42 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that require the user to have a user identification name or log-in email.

59.   The defendant must not change his appearance without the approval of his EO.

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

61.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide his EO with such details.

Part M: Medical intervention and treatment

62.   The defendant must notify his EO of the identity and address of any health care practitioner that he consults.

63.   The defendant must attend, upon the direction of his EO, any psychological and psychiatric assessments, therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

64.   The defendant must take all medications that are prescribed to him by his health care practitioners, including as part of a pain management plan.

65.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his EO within 24 hours of ceasing to take the medication.

66.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress, and information he has told them, with one another and with his EO.

67.   The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, his EO, NSWPF and CSNSW.

Annexed Maps (1.29 MB, pdf) from paragraph 17 of the Schedule

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Decision last updated: 16 January 2019

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Cases Citing This Decision

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Hardy v State of New South Wales [2021] NSWCA 338
State of New South Wales v G (Preliminary) [2022] NSWSC 1617
State of New South Wales v Hardy (Final) [2021] NSWSC 900
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