State of NSW v TL (Preliminary)

[2022] NSWSC 946

Supreme Court

New South Wales

Medium Neutral Citation:

State of NSW v TL (Preliminary) [2022] NSWSC 946

Hearing dates:

28 March 2022; 19 April 2022; 3 May 2022

Date of orders:

03 May 2022

Decision date:

03 May 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The Interim Detention Order imposed by Fullerton J on 21 August 2019 pursuant to ss. 41 and 42 of the Terrorism (High Risk Offenders) Act 2017 (“the Act”) is revoked.

(2) Orders pursuant to s. 24(5) of the Act:

(a) appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations, respectively, of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) directing the defendant to attend those examinations.

(3) order 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 commencing from the date of this order.

(4) An order pursuant to s. 29(1) of the Act directing that the defendant comply with the conditions set out in the Schedule attached to these orders for the duration of the Interim Supervision Order referred to at order (3) above.

Note: Orders 5-9 do not prevent providing an expert with a copy of the unredacted material for the purpose of the proceedings under the Act.

(5) Pursuant to s. 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the CSNPO Act”) order that the following material in the proceedings not be published:

(a) paragraphs [5]-[18] of the affidavit of Graeme Costello sworn 1 March 2022 and filed in the proceedings on 21 March 2022; and

(b) evidence in the proceedings that tends to reveal the current and future placement of the defendant.

(6) Order 5 is made on the grounds specified in s. 8(1)(c) of the CSNPO Act.

(7) To the extent there was disclosure of the placement of the defendant or the supervision arrangements in place for the defendant in the course of the proceedings in either the documentary evidence or oral evidence of the witnesses or in the written or oral submissions made, such disclosure will not be published pursuant to s. 7 of the CSNPO Act, on the grounds specified in s. 8(1)(c) of that Act.

(8) Orders 5 and 7 are to operate for a period of ten (10) years from the date of these orders.

(9) Until such time as a verdict is reached, pleas of guilty are entered, or findings of guilt are recorded in respect of criminal proceedings (2021/00046726):

(a) There is to be no:

(i) Publication of the defendant’s name in relation to proceedings under the Act;

(ii) medical information relating to the defendant that would link the defendant to these proceedings or enable his identification in relation to these proceedings, noting that “Medical information” includes details of his injury, diagnosis and prognosis, his medical treatment and the cause of his injury;

(iii) details of the evidence, orders or outcome of proceedings in relation to the proceedings against the defendant under the Act, including all proceedings in relation to file number 2019/185422.

(10) This matter is listed for further directions on 12 May 2022.

Catchwords:

HIGH RISK OFFENDER – Preliminary proceedings – Application by the defendant to revoke an interim detention order – Further application by the plaintiff that the defendant be subject to an interim supervision order – Where the defendant was severely injured after the interim detention order had been made – Where injuries rendered him a tetraplegic – Where defendant had also been charged with terrorism offences in respect of which he had been released on bail – Test for revocation – Interim detention order revoked – Interim supervision order made

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Criminal Code 1995 (Cth)

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

Lawrence v State of NSW [2020] NSWCA 248

Manna v New South Wales [2021] NSWSC 1220

State of NSW v Kay [2018] NSWSC 1235

State of NSW v Lawrence (Preliminary) [2019] NSWSC 1101

State of NSW v Mills [2019] NSWSC 298

State of New South Wales v Schmidt (Preliminary) [2019] NSWSC 52

Category:

Principal judgment

Parties:

State of New South Wales – Plaintiff
TL – Defendant

Representation:

Counsel:
J Emmett SC – Plaintiff
N Steel – Defendant

Solicitors:
NSW Crown Solicitor’s Office– Plaintiff
Legal Aid NSW – Defendant

File Number(s):

2019/185422; 2022/84735

Publication restriction:

See orders

Judgment

INTRODUCTION

1. There are two applications before the Court for determination.

2. The first is the defendant's application, brought by a notice of motion filed on 22 December 2021, seeking (inter alia) that the interim detention order made against him by Fullerton J on 21 August 2019 be revoked pursuant to s 48 of the Terrorism (High Risk Offenders) Act 2017 (NSW) (the Act).

3. The second is the plaintiff’s application, brought by a summons filed on 28 February 2022, seeking (inter alia) an order that the defendant be subject to an interim supervision order for a period of 28 days.

4. As a matter of practicality, the plaintiff’s application will only require determination in the event that the defendant's application for revocation of the interim detention order is successful.

THE FACTUAL BACKGROUND

The index offences

5. On 31 July 2017 the defendant, in the company of others, attended premises where another person (the victim) resided with his wife and daughter. The victim and his family were at home at the time and many of the events which occurred, which are summarised below, were captured on CCTV footage.

6. The victim heard his front doorbell ring. The CCTV footage depicted a male wearing a “hoodie” partially covering his face at the front door (that person being one of the defendant’s co-offenders). In those circumstances, the victim did not answer the door but continued to view the CCTV monitor.

7. When the front doorbell rang again, the victim looked at other CCTV monitors. He saw the defendant standing on the path leading to the front door of the premises, holding an item which appeared to be a baseball bat. The victim did not open the door of the premises and remained silent inside with this family so as not to alert the defendant and his co-offenders to their presence.

8. A few minutes later, the victim received a call from an unknown number which he did not answer. Approximately 1 minute later, received a further call from a number which was displayed. Once again, he did not answer. A short time later the victim called the second number back. The defendant answered and demanded the sum of $60,000.00 referable to “the gold you guys took”. The defendant made it known to the victim that he knew his personal circumstances (including the number of members of his family) and threatened to surround the victim's premises with more people if his demand for money was not met. He also demanded to be given the victim's car and truck if the victim did not have sufficient money to pay him.

9. The defendant was charged with offences of being armed with intent to steal in company, and being armed with intent to commit and indictable offence. He was sentenced to imprisonment for 1 year and 6 months commencing on 22 February 2018 and expiring on 21 August 2019.

The previous application for an Interim Detention Order

10. On 14 June 2019, the plaintiff filed a summons seeking (inter alia) orders pursuant to ss 41 and 42(1) of the Act. That application was heard by Fullerton J on 19 August 2019. In a judgment delivered on 21 August 2019 her Honour made orders (inter alia) that the defendant be subject to an Interim Detention Order. [1] Her Honour's orders were stayed pending the determination of a constitutional issue which was ultimately resolved in the plaintiff's favour. An appeal against that determination was dismissed by the Court of Appeal. [2]

    1. State of NSW v Lawrence (Preliminary) [2019] NSWSC 1101.

    2. Lawrence v State of NSW [2020] NSWCA 248.

11. The judgment of Fullerton J includes a number of matters relevant to the present application.

12. First, in addressing the likelihood of the defendant committing a serious terrorism offence, her Honour made reference to a psychological risk assessment report which included the following:[3]

Mr Lawrence is a 22 year old male who identifies as Muslim. ... Between the period of 2014 to 2017 Mr Lawrence made statements and/or engaged in behaviours which have contained elements of an extremist religious ideology and/or espoused support for violent extremist activities. Mr Lawrence is also reported to have engaged in online activity including viewing violent extremist propaganda, posting, commenting and /or sharing material online within an Islamic extremist context and communicating with persons of interest to counter terrorism authorities.

Mr Lawrence has a longstanding criminal history which commenced early in his teenage years. He has continued to engage in non-compliant, anti-social and violent offending behaviour, with a demonstrated escalation over time in regards to his violent offending.

Mr Lawrence is currently assessed within the High risk category of violent offending relative to other male violent offenders and within the Moderate/High risk of general offending. Furthermore, the current assessment placed Mr Lawrence within the High range of engaging in extremist violence. His presentation suggest the presence of an ideology that justifies the use of violence, a high degree of capacity and access, a number of relevant underlying motivations and a verbalised intention to use violence. The combination of these factors suggests a degree of imminence of risk for religiously motivated violence, violent extremism or terrorist activity. In addition to this, consideration of his likelihood of engaging in lone actor style targeted violence remains of concern, as assessed by the TRAP-18. Mr Lawrence is noted to have a number of proximal warning behaviours and distal characteristics which indicates that his behaviour warrants both monitoring and relevant intervention to manage this risk. It is also of noted significance that Mr Lawrence appears to have minimal protective factors and a number of additional indicators which may exacerbate his risk of violent extremism.

In the event that Mr Lawrence is subject to a Continuing Detention Order (CDO) he may benefit from a referral to the Proactive Integrated Support Model (PRISM) service, a custody based disengagement support service. It would also be recommended that he be referred to intensive programming including the Violent Offenders Therapeutic Program (VOTP) to address his specific violence treatment needs.

In the event that Mr Lawrence is subject of an Extended Supervision Order (ESO) he is likely to require high levels of monitoring, scheduling and restrictions of his online activities and associations. He may also benefit from comprehensive case management and an intervention plan.

3. At [29].

13. Secondly, her Honour noted[4] the following additional observations in the risk assessment report:

Overall, Mr Lawrence's rigid beliefs related to monotheism, the rejection of Western democratic norms and other non-Islamic models of governance, coupled with a critical view of Western influences and an indifference to being re-incarcerated due to his religious beliefs, may serve to intensify a "nothing to lose" mentality which may in turn serve to increase his susceptibility to engaging in violent extremism.

4. At [30].

14. Thirdly, her Honour noted[5] that during his period of custody, the defendant had incurred a number of institutional misconduct charges for both violent behaviour and general misconduct.

    5. At [34].

15. Fourthly, her Honour noted[6] that the defendant had also incurred an institutional misconduct charge for intimidation which arose from a threat to assault correctional staff.

    6. At [35].

16. Fifthly, in addressing the defendant's response to community supervision, her Honour noted that the risk assessment report included the following:[7]

Mr Lawrence's history demonstrates a consistently poor response to supervision commencing as a young person. He has also demonstrated a history of missing appointments, providing conflicting information, not complying with directions to reside in approved locations and absconding. As a young person, his community supervision was often aided by intensive case management from community organisations alongside Juvenile Justice/CSNSW. Case workers have attended CSNSW community supervision appointments with Mr Lawrence.

Presently at the time of interviews, he demonstrated improved insight into his high risk situations for general violence and offending and had some strategies to manage potential high risk situations. However, they appeared largely avoidance based. Given this, he would require ongoing support to maintain adherence with these management strategies, structure to his activities and continued compliance. Prior releases into the community resulted in him returning to high risk areas, remaining in contact with negative peers and failing to attend appointments following a short period of compliance. This demonstrates Mr Lawrence's tendency to engage superficially with service providers and his attempts to achieve the minimum required to avoid serious penalty such as a breach of parole.

During his most recent period of community supervision, he repeatedly avoided engaging with a Psychologist in the community as organised by his CCO. Of note, he was directed to engage in the CSNSW EQUIPS Aggression program whilst under supervision and file information notes he completed this in December 2018.

Mr Lawrence was issued with a warrant for the revocation of his parole by the NSW State Parole Authority on 17 March 2019. At the time of his arrest by the NSWPF at his home, he reportedly stated ‘Shoot me dead. I just don't care just shoot me’ (Investigators note, 18/04/19). He was able to be calmed and submitted willingly to his arrest. Of note however, when he transferred to Granville Police Station and informed he would be re-entering the custody of Corrective Services NSW, he was noted to become aggressive in his presentation style and threatened the police stating ‘(IND) your whole house’, ‘one phone call and I will have all your details in a second’.

7. At [36].

17. Sixthly, her Honour noted[8] that the defendant had exhibited an established pattern of non-compliance with a number of community-based orders which were referred to in a risk intervention report in the following terms:

Since December 2013, Mr Lawrence has been subject to a number of community based orders. Breach reports demonstrate Mr Lawrence's non-compliance with supervision by way of drug use, failure to engage in intervention, failure to reside at an approved address and further offending. Concerns regarding Mr Lawrence's association with criminal networks and extremist ideology became apparent from 2015. He was engaging with persons holding extremist views, expressed his desire to join terrorist organisations, and made statements supporting extremist ideologies.

8. At [37].

18. Seventhly, having noted the defendant's history of non-compliance with bail conditions,[9] her Honour addressed the defendant's criminal history,[10] describing it as “extensive”, and one that demonstrated “an escalation over time in both the violence and frequency of [his] offending.” Her Honour then set out the following summary of that history: [11]

    9. At [38].

    10. At [39].

    11. Further entries on the defendant’s history have been added since that time and are set out below.

Charge Date	Convictions
27/12/11	Destroy or Damage Property <=$2000-T2
07/01/12	Breach of Bail -Application to re-determine Destroy or Damage Property (2 counts)
26/04/12	Destroy or Damage Property <=$2000-T2 Warrant executed
27/04/12	Shoplifting Value <=$2000 -T2 (dismissed with caution)
30/04/12	Stalk/Intimidate Intend Fear Physical etc Harm (Personal)
04/05/12	Goods Suspected Stolen In/On Premises (Not M/V) (2 counts)
04/05/12	Goods in Personal Custody Suspected Being Stolen (Not M/V) Breach of Bail -Application to Re-determine
09/05/12	Larceny value <$2000 (dismissed with caution)
25/05/12	Steal From Person Larceny
25/05/12	Goods in Personal Custody Suspected Being Stolen (not M/V) (dismissed with caution)
15/07/12	Damage Property by Fire/Exp >$5000 & <=$15000
17/07/12	Breach of Bail - Application to Re-determine Resist Officer in Execution of Duty (DV) Destroy or Damage Property (DV)
27/07/12	Warrant Executed
01/08/12	Drive Recklessly/Furiously or Speed Manner Dangerous Take & Drive Conveyance W/O Consent of Owner

19. Eighthly, her Honour found[12] that the defendant's (then) current and continuing affiliation with fundamentalist belief structures was demonstrated by his support for violent extremist activities, along with behaviour which exhibited elements of an extremist religious ideology.

    12. At [42].

20. Ninthly, her Honour noted[13] the reference in the risk intervention report that the defendant had first commenced to make statements in support of terrorism whilst in juvenile detention in 2014, and that his religious views and statements in support of violent extremism had increased since that time.

    13. At [43].

21. Finally, her Honour made reference[14] to the defendant's associations with organised crime and crime groups, the escalation of his extremist religious views, his associations with religious extremists, the use of weapons, and associated violence.

    14. At [44].

22. Having undertaken the evaluative exercise required under ss 25 and 39 of the Act, her Honour concluded (inter alia) that the defendant was at a high risk of engaging in extremist violence and that he had a violent ideation, including a willingness to die as a martyr for a religious cause. In respect of such matters, her Honour found[15] that the defendant had engaged in:

(1) viewing extremist material in his cell in the form of videos depicting, amongst other things, beheadings, which he appears to revel in describing the acts as ‘beautiful’;

(2) preparing and training to fight the kuffar (i.e. unbelievers);

(3) viewing the “Terrorist’s Handbook”;

(4) referencing the Christchurch shootings as a war on Islam;

(5) planning to start an Islamic community or “Islamic state” or “Islamic Brotherhood” in which the laws of Allah would apply, including appointed punishments such as death and lashes; and

(6) accessing extremist material online, including lectures by radical Salafists, in a way which her Honour regarded as prolific, and which intensified from about December 2018 until his parole was revoked in March 2019.

15. At [79].

The defendant’s further offences

23. Since the index offences, the defendant has committed the following further offences:

1. 30 July 2019 – stalking/intimidation, for which he was sentenced to imprisonment for 18 months;

2. August 2019/September 2019 – four offences of contravening an Apprehended Domestic Violence Order, of each of which he was convicted without penalty;

3. 1 October 2019 – intimidating a police officer, for which he was sentenced to imprisonment for 18 months;

4. 31 March 2020 – four offences of contravening an Apprehended Domestic Violence Order of each of which he was convicted without penalty.

24. On 18 February 2021 the defendant was charged with two counts of doing acts in preparation for a terrorist act, contrary to the provisions of the Criminal Code 1995 (Cth). Those matters remain before the Local Court. The defendant has since been released on bail in respect of those matters by orders of Ierace J

25. There is also some evidence that whilst in custody, the defendant has communicated with others who are known by the authorities to support violent extremism.

The defendant’s injuries sustained in November 2021

26. On 27 November 2021 the defendant was involved in an incident in custody and was transferred to Prince of Wales Hospital where he was diagnosed with a C5 burst fracture with spinal canal stenosis and a complete deficit below C6. He underwent surgery in the form of a C5 corpectomy with anterior fusion and iliac crest bone graft. He remained in the intensive care unit at the Prince of Wales Hospital until 9 December 2021 at which time he was transferred to the Spinal Injuries Unit under the care of Dr Sachin Shetty.

27. Dr Shetty’s report confirms that the defendant is a diagnosed tetraplegic as a consequence of his spinal cord injury. As a consequence, he:

1. has lost control in all four limbs;

2. has no control of bowel function;

3. has no sensational control of his bladder and is currently managed with an indwelling catheter.

4. has little or no sensation below his chest level;

5. is likely to have permanent deficits in functioning of both his upper and lower limbs;

6. is unlikely to attain enough movement in the lower limbs to allow independent ambulation;

7. will require full assistance in showering and dressing; and

8. is very likely to require a significant degree of assistance to perform all activities of daily living.

28. Dr Shetty expressed the view that the best case prognosis for a person with the defendant’s injuries and disabilities would be the achievement of some functional recovery in his lower limbs that may allow him to stand up and take a few steps with a walker.

29. Dr Shetty gave evidence on the present application. He confirmed the nature and extent of the defendant’s injuries, and described the defendant's progress as “minor”.

30. Lynn Blecher, a Physiotherapist at the Prince of Wales Hospital, also gave evidence before me, having prepared a report in relation to the defendant of 21 March 2022. Ms Blecher is the defendant's primary treating physiotherapist. In summary, her evidence was that the defendant's presentation was characterised by:

1. full paralysis of the finger and thumb muscles;

2. tenodesis; and

3. no voluntary movement in any direction of his fingers or thumbs.

31. Ms Blecher’s evidence was that the defendant is capable of using a mobile telephone by “knocking” the buttons with his knuckle, and that he is capable of using a keyboard in a way which was “slow and effortful”. She also said that the defendant’s rehabilitation from his injuries could extend to a period of up to five years, and may include further surgery in an attempt to increase the functionality of his hands which, if it were carried out, would extend his period of rehabilitation. Ms Blecher also gave evidence that the defendant’s injuries have resulted in a reduced respiratory capacity and that whilst he is able to breathe by himself, he has been recommended to have ventilatory support overnight.

THE RISK ASSESSMENT REPORT

32. I have already set out the views expressed in the risk assessment report which was before Fullerton J.

33. A further report dated 16 February 2022 was provided by Ms Filipa Abreu without the benefit of speaking with the defendant, who declined to be interviewed. Ms Abreu then provided another report of 21 March 2022, which was again prepared in the absence of the defendant being interviewed.

34. Ms Abreu assessed the defendant as falling in the high risk category for general offending. Whilst Ms Abreu expressly acknowledged the nature and extent of the defendant’s injuries, she expressed the view that the ongoing threat of actual physical violence “could not be discounted”.

35. Whilst I accept that there is evidence that the defendant continues to express extremist ideologies, there are obvious physical constraints imposed upon him in terms of putting those ideologies into effect. Ms Abreu concluded (inter alia) that the defendant’s risk of engaging in an act of violence remained within the high range. Whilst I accept that there is some risk, it is difficult to understand how this could realistically be assessed as high, given the nature and extent of the defendant’s injuries that I have previously outlined.

THE RISK MANAGEMENT REPORTS

36. There are two risk management reports, the first of which was prepared by the High Risk Terrorism Offenders Division of the NSW Police. That report made reference to the defendant having the capacity, despite his injuries, to influence and incite others.

37. A Community Corrections Risk Management Report expressed generally similar views, and emphasised that despite his injuries, the defendant retained what might be described as an “organisational capacity” which could be deployed within the context of religiously motivated violence.

38. I accept that the defendant does have the respective capacities referred to in each of these reports. However, to the extent that those capacities rely upon the use of fine motor skills, they are affected by his injuries. For example, although theoretically the defendant can utilise a mobile telephone and a keyboard, his ability to do so effectively is severely compromised.

THE APPLICATION FOR REVOCATION OF THE INTERIM DETENTION ORDER

Submissions of the plaintiff

39. Senior counsel for the plaintiff submitted that a number of matters tended against the revocation of the interim detention order made by Fullerton J. It was submitted that notwithstanding the change of circumstances brought about by the defendant’s injuries:

1. there were a range of terrorism related offences which did not require physical capacity to participate in any act of violence;

2. the defendant retained the ability to communicate with others, and thus retained the ability to prepare for, plan or resource terrorist acts, and to encourage others to do so;

3. the defendant had recently been charged with two counts of doing acts in preparation for, or planning, a terrorist act or acts, contrary to s 101.6(1) of the Criminal Code 1995 (Cth);

4. the defendant had an extensive criminal history, including a history of violent offending which was accompanied by a history of making statements advocating, encouraging and endorsing violent extremism;

5. the defendant had a documented and sustained interest in violence, which was often expressed through engagement with online content, and by sharing that content with others;

6. the defendant had a history of not complying with bail and other Court orders, and had committed offences whilst on parole in custody;

7. the defendant had associates in the community who shared his extremist ideology; and

8. a cautious approach was warranted in circumstances where the matter was still effectively at the preliminary hearing stage.

Submissions of the defendant

40. Counsel for the defendant submitted that the defendant’s circumstances had significantly changed as a consequence of his catastrophic injuries, to the point where the order made by Fullerton J was no longer necessary. It was submitted that in light of the views of Dr Shetty, the defendant's spinal injury was so debilitating that there was no longer any risk of him committing a serious terrorism offence if he was not kept in detention. It was submitted that even if such a risk was identified, it was so low that it was not one that could be properly considered unacceptable so as to justify the continuation of the present order. Counsel emphasised that, on the evidence, the defendant was almost entirely lacking in any physical capacity, and that this was unlikely to change to any material degree.

Consideration

41. Section 48(1) of the Act confers a discretion to revoke the order made by Fullerton J. Section 48(3) provides that, without limiting the grounds for the exercise of that discretion, the Court may revoke such an order if it satisfied that the circumstances have changed sufficiently to render such order unnecessary.

42. I was informed in the course of submissions that s 48 has not previously been the subject of judicial consideration. Section 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) confers a discretion on the Court to revoke an extended supervision order or interim supervision order made under that Act. Section 13(1B) of the CHRO Act is, for present purposes, in identical terms to s 48(3) of the Act.

43. In State of New South Wales v Kay [16] Wilson J took the view that the terms of s 13 of the CHRO Act conferred an unfettered discretion on the Court, subject to the objects and provisions of the CHRO Act. In State of New South Wales v Mills [17] Campbell J appears to have taken a different view, although his Honour did not refer to the decision Kay.

    16. [2018] NSWSC 1235 at [66].

    17. [2019] NSWSC 298 at [30].

44. In the present case, the issue of the breadth of the discretion in s 48 of the Act was referred to in submissions, but was not the subject of full argument. I respectfully agree with Wilson J that the discretion in s 13 of the CHRO Act is unfettered, subject to the objects of the Act. The same view was taken by Walton J in State of New South Wales v Schmidt (Preliminary) [18] and by Hamill J in Manna v New South Wales. [19] Accepting that view, the discretion in s 48 should be viewed in the same way, namely as incorporating an unfettered discretion, subject to the objects and provisions of the Act.

    18. [2019] NSWSC 52 at [21].

    19. [2021] NSWSC 1220 at [7].

45. I acknowledge that there is evidence which establishes that the defendant adheres to extremist beliefs. However, it will be obvious that a change in circumstances in the present case has been brought about by the defendant’s injuries. I have set out the extent and effect of those injuries above. They have an obvious, and severe, impact upon the defendant’s ability to undertake any physical act at all, including any act of violence. For the reasons previously stated, I am unable to accept the views of Ms Abreu that the defendant’s risk of engaging in an act of violence remains within the high range. I accept that there is some risk, but in my view it falls towards the opposite end of the scale.

46. In these circumstances I am not satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious terrorism offence if he is not detained. In those circumstances, the order of Fullerton J should be revoked.

THE APPLICATION FOR AN INTERIM SUPERVISION ORDER

47. Having reached that conclusion, it remains to consider the plaintiff’s application for an interim supervision order, bearing in mind that orders have now been made by Ierace J releasing the defendant on bail in respect of the charges most recently brought against him.

48. Counsel for the defendant did not wish to be heard against the making of such an order. In particular, counsel took no issue with the fact that the formal requirements for the making of such an order were made out, and that it would be open to me to 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. That said, whether an interim supervision order should be made remains a matter for the Court.

49. I have had regard to all of the statutory factors and again bear in mind the evidence which tends to establish that the defendant continues to adhere to extremist beliefs. For the reasons I have already stated, the defendant’s injuries severely impede his ability to engage in any physical act, be it an act of violence or otherwise. That said, there remains a risk that he could (for example) communicate with and encourage others in a way which was consistent with his beliefs, and in a way which amounted to preparing, or planning for, a terrorist act.

50. In those circumstances I am satisfied that an interim supervision order should be made.

ORDERS

51. For these reasons I make the following orders:

(1) The Interim Detention Order imposed by Fullerton J on 21 August 2019 pursuant to ss. 41 and 42 of the Terrorism (High Risk Offenders) Act 2017 (“the Act”) is revoked.

(2) Orders pursuant to s. 24(5) of the Act:

(a) appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations, respectively, of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) directing the defendant to attend those examinations.

(3) order 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 commencing from the date of this order.

(4) An order pursuant to s. 29(1) of the Act directing that the defendant comply with the conditions set out in the Schedule attached to these orders for the duration of the Interim Supervision Order referred to at order (3) above.

Note: Orders 5-9 do not prevent providing an expert with a copy of the unredacted material for the purpose of the proceedings under the Act.

(5) Pursuant to s. 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the CSNPO Act”) an order that the following material in the proceedings not be published:

(a) paragraphs [5]-[18] of the affidavit of Graeme Costello sworn 1 March 2022 and filed in the proceedings on 21 March 2022; and

(b) evidence in the proceedings that tends to reveal the current and future placement of the defendant.

(6) Order 5 is made on the grounds specified in s. 8(1)(c) of the CSNPO Act.

(7) To the extent there was disclosure of the placement of the defendant or the supervision arrangements in place for the defendant in the course of the proceedings in either the documentary evidence or oral evidence of the witnesses or in the written or oral submissions made, such disclosure will not be published pursuant to s. 7 of the CSNPO Act, on the grounds specified in s. 8(1)(c) of that Act.

(8) Orders 5 and 7 are to operate for a period of ten (10) years from the date of these orders.

(9) Until such time as a verdict is reached, pleas of guilty are entered, or findings of guilt are recorded in respect of criminal proceedings (2021/00046726):

(a) There is to be no:

(i) Publication of the defendant’s name in relation to proceedings under the Act;

(ii) medical information relating to the defendant that would link the defendant to these proceedings or enable his identification in relation to these proceedings, noting that “Medical information” includes details of his injury, diagnosis and prognosis, his medical treatment and the cause of his injury;

(iii) details of the evidence, orders or outcome of proceedings in relation to the proceedings against the defendant under the Act, including all proceedings in relation to file number 2019/185422.

(10) This matter is listed for further directions on 12 May 2022.

**********

Endnotes

Decision last updated: 12 October 2023