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Supreme Court 14 September 2023

State of New South Wales v Elmir

[2023] NSWSC 1101

Public order & justice offences
TERRORISM HIGH RISK OFFENDER PRELIMINARY HEARING

Citation: State of New South Wales v Elmir [2023] NSWSC 1101
Court: Supreme Court of New South Wales
Date: 14 September 2023
Judge: Harrison J

Background

The defendant is a man who, in 2016, travelled to Turkey and stayed at an Islamic State safe house for approximately two months. He attempted to enter Syria, reportedly to take part in hostilities against the Assad regime, but was arrested by Turkish authorities before crossing the border. He pleaded guilty to an offence of committing acts preparatory to a foreign incursion and was sentenced to five years' imprisonment with a non-parole period of just over four years. He was never released on parole and served his full head sentence, which expired in September 2022.

A prior extended supervision order had been imposed on him in December 2019 by Walton J and was due to expire on 20 September 2023. The State applied for a further extended supervision order of 12 months under the Terrorism (High Risk Offenders) Act 2017 (NSW). The matter came before Harrison J only at the preliminary hearing stage, not the final hearing.

At the preliminary hearing, the court's task was to determine whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. That required satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision.

Legal Issues

  • Whether the materials in the State's supporting documentation would, if proved, satisfy the court to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence, as required by s 20(d) of the Terrorism (High Risk Offenders) Act 2017 (NSW)
  • Whether the expert risk assessments, including the most recent psychological report, supported that level of satisfaction
  • Whether reliance on the defendant's failure to affirmatively denounce terrorism, rather than affirmative evidence of risk, was sufficient to meet the statutory threshold

Decision

Preliminary threshold test: The court confirmed that the issue at a preliminary hearing is circumscribed by ss 24(5) and 24(7) of the Act. The parties agreed, and the court was satisfied, that the defendant is an eligible offender and that the preconditions in s 20(a), (b) and (c) are established (at [3]). The sole remaining question was whether the supporting documentation would, if proved, justify the making of an order under s 20(d).

The expert evidence: The court examined in detail the psychological risk assessment of Ms Prince, whose most recent report concluded that the defendant presents a moderate risk of supporting, promoting, or engaging in violent extremism related behaviour (at [17]). The court noted several favourable findings within that report: the defendant is happy to live in Australia, does not demonstrate overt hostility toward Australia or police, has actively sought to comply with his supervision order while maintaining his religious beliefs, and expressly denies any intention to engage in or support terrorism activity in Australia (at [19], [21], [25]). Critically, Ms Prince also stated that he presents with no proximal behavioural indicators suggesting he is on a pathway toward violent extremist or terrorism related activity (at [35]).

Tension in the expert's conclusions: The court identified a significant internal tension in Ms Prince's report. Her overall conclusion of moderate risk could not be reconciled with her own findings that there is no indication of intention to engage in terrorism activity in Australia, no information implicating him in any terrorism activity in Australia, and no proximal indicators of a pathway toward violence (at [33], [35]). The court also noted that Ms Prince's risk conclusion described a risk of "violent extremism related behaviour" rather than the specific statutory test of a "serious terrorism offence," and that her acknowledged difficulty in forming an informed opinion about his trajectory after the order's cessation should not displace the requirement for an evidence-based conclusion (at [40]).

Reliance on absence of denunciations: The court was critical of the State's approach of discounting the defendant's favourable statements by reference to his failure to affirmatively denounce the terrorist actions of others, and of placing a burden on him to disprove risk (at [25]). The court found the State's case rested on subjunctive reasoning and arguable possibilities rather than evidence capable of producing satisfaction to a high degree of probability (at [37]). Following the approach confirmed by the Court of Appeal in Naaman, the court held that the statutory test is not satisfied by speculation and requires an evidence-based conclusion (at [41]). The court was not satisfied to the requisite degree that the defendant poses the unacceptable risk alleged and dismissed the application (at [42]).

Orders Made

  • The application was dismissed.
  • The State of New South Wales was ordered to pay the defendant's costs.

Key Takeaways

  • The Supreme Court confirmed that at a preliminary hearing under the Terrorism (High Risk Offenders) Act 2017 (NSW), the relevant question is whether the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, requiring satisfaction to a high degree of probability of an unacceptable risk of committing a serious terrorism offence (at [2]).

  • A moderate risk of "violent extremism related behaviour," as assessed by a psychologist, is not the same as the statutory criterion of an unacceptable risk of committing a "serious terrorism offence"; the distinction, while potentially appearing technical, was treated as legally material (at [27]).

  • Where expert conclusions contain significant internal tensions, particularly where favourable findings about a defendant's behaviour and stated intentions sit irreconcilably alongside an adverse overall risk rating, the court is required to evaluate that evidence critically rather than accept the headline conclusion (at [35], [41]).

  • Relying on a defendant's failure to affirmatively denounce terrorism, rather than on affirmative evidence of risk, does not discharge the State's burden of satisfying the court to a high degree of probability; the statutory test cannot be met through speculation about hypothetical future circumstances (at [25], [37]).

  • In dismissing the application, Harrison J emphasised that the high degree of probability standard reflects the extraordinary nature of the interference with personal liberty that a supervision order represents, and that expert opinion on the ultimate risk question is one piece of evidence for the court to weigh, not a substitute for the court's own satisfaction (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 60A
- Criminal Cod e 1995 (Cth) s 119.1
- Terrorism (High Risk Offenders) Act 2017 (NSW) ss 20, 24, 25

Cases
- R v Elmir (No 3) [2019] NSWSC 1040
- State of New South Wales v Elmir (Final) [2019] NSWSC 1867
- State of New South Wales v Naaman (No 2) [2018] NSWCA 328