Citation: State of New South Wales v Liddington (Preliminary) [2025] NSWSC 10
Court: Supreme Court of New South Wales
Date: 31 January 2025
Judge(s): Coleman J
Background
The State of New South Wales applied under the Terrorism (High Risk Offenders) Act 2017 (NSW) ("THRO Act") for an interim supervision order ("ISO") in respect of a defendant who was approaching the end of a custodial sentence. The defendant had been convicted of index offences including the stalking and intimidation of a person based on that person's association with an anti-fascist group, offences that a magistrate found were motivated by hatred or prejudice. The defendant had an extensive history of white supremacist ideology and associations with far-right extremist groups spanning approximately 16 years.
The preliminary hearing was conducted to determine whether the evidence, taken at its highest through the lens of the plaintiff's case, was sufficient to justify the making of an extended supervision order ("ESO") at a final hearing. The court was not required at this stage to reach the higher standard of satisfaction required for a final ESO.
Legal Issues
- Whether the evidentiary threshold under the THRO Act was met at the preliminary hearing stage to justify proceeding to a final hearing for an ESO.
- Whether, on the evidence taken at its highest, the defendant posed an unacceptable risk of committing a "serious terrorism offence" if not kept under supervision.
- Whether the existence of other orders already in place (including intensive correction orders and weapons prohibition orders) sufficiently mitigated any identified risk so as to warrant refusing the ISO.
- What conditions should attach to any ISO granted.
Decision
Issue 1: Preliminary threshold under the THRO Act
Coleman J confirmed that the test at the preliminary hearing stage is not a stringent one. The court must assess whether, if the matters relied upon by the plaintiff were proved, they would justify the making of an ESO. Meritless applications should be dismissed at this stage, but the court did not regard this as such an application (at [213]-[214]).
Issue 2: Unacceptable risk of a serious terrorism offence
The court found that, taking the evidence at its highest, there is an unacceptable risk that the defendant could engage in conduct similar to his index offences with the intention of intimidating the public or a section of the public in furtherance of his extremist ideologies (at [216]-[217]). The court acknowledged there was no definitive evidence of the defendant having had each specific intention required for a serious terrorism offence, but considered that the defendant's continued holding of extremist views and his maintained associations with violent extremist persons and groups gave rise to an unacceptable risk (at [216]-[219]). The court also accepted that even interpersonal ideologically motivated conflict, particularly when combined with alcohol intoxication, could progress to conduct meeting the necessary threshold (at [218]).
Issue 3: Protective factors and other orders
The court accepted that certain matters reduced the defendant's risk, including his relationship with his partner, his expressed desire to remain out of custody, and his engagement with corrective services psychology (at [221]). However, the court found these protective factors were insufficient to bring the identified risk below the threshold of unacceptable, particularly given expert opinion that the defendant may have been engaging in impression management (at [221]). The court held that the existing intensive correction orders served a materially different purpose and provided a materially different level of supervision to that achievable under an ISO, and were not sufficiently protective against the specific terrorism-related risk identified (at [222]).
Issue 4: Conditions of the ISO
The court accepted the conditions proposed by the plaintiff as appropriately balancing the identified unacceptable risk against the intrusive nature of supervision conditions. Specialist and dedicated agencies from Community Corrections and NSW Police would be engaged in supervising the defendant under those conditions (at [137], [227]).
Orders Made
- A qualified psychiatrist and a registered psychologist to be appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court by a date to be fixed; the defendant directed to attend those examinations.
- The defendant to be subject to an Interim Supervision Order commencing 3 February 2025.
- The Interim Supervision Order to be for a period of 28 days.
- The defendant directed to comply with the conditions set out in Annexure A to the court's reasons.
Key Takeaways
- Under the THRO Act, the preliminary hearing threshold is deliberately lower than the standard required for a final extended supervision order: the court need only be satisfied that the matters relied upon, if proved, would justify making an ESO, and the risk need not be highly probable (at [213]).
- An unacceptable risk of committing a serious terrorism offence does not require definitive evidence of each element of the necessary double intention; the court may draw inferences from the totality of evidence including ideological history, associations, and conduct patterns (at [216]-[218]).
- Existing orders such as intensive correction orders and weapons prohibition orders do not, of themselves, displace the need for a terrorism-specific supervision order where the risks addressed by each regime are materially different in nature and the specialist oversight available under a terrorism order is not replicated under those other orders (at [222]).
- Expert risk assessments that are not capable of generating quantitative or probabilistic predictions (such as the VERA-2R and MLG-V2 tools administered here) may still carry significant weight in preliminary proceedings, provided the court is clear about the limitations of those tools (at [100], [124]).
- A defendant's engagement in apparent "impression management" with assessing clinicians is a factor the court may weigh against protective findings derived from self-reported attitudinal change, particularly where collateral information contradicts those self-reports (at [221]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Administration of Sentences) Act 1999
- (NSW)
- Crimes (Domestic and Personal Violence) Act 2007
- (NSW)
- Criminal Code Act 1995 (Cth)
- Evidence Act 1995 (NSW)
- Motor Accidents Compensation Act 1999 (NSW)
- Road Transport Act 2013 (NSW)
- Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases
- Kamm v State of NSW (Final) [2016] NSWSC 1
- New South Wales v Elzamtur [2019] NSWSC 186 NSW v LC (Preliminary) [2022] NSWSC 1682
- NSW v Manners [2008] NSWSC 1242
- State of New South Wales v Cheema (Preliminary)
- [2020] NSWSC 876
- State of New South Wales v Lynn [2013] NSW SC1147
- State of New South Wales v Manners [2008] NSWSC 1242
- New South Wales v Naaman (No 2) [2018] NSWCA 328
- State of New South Wales v Naaman (No 2) [2018] NSWSC 1329
- State of NSW v Hardy (Final) [2021] NSWSC 900
- State of NSW v Sancar [2016] NSWSC 867