State of New South Wales v Hickey (Preliminary) [2022] NSWSC 1498 (4 November 2022)

State of New South Wales v Hickey (Preliminary) [2022] NSWSC 1498 (4 November 2022)

Facts:

By summons filed on 15 September 2022, the State of New South Wales (“the State”) seeks a continuing detention order (“CDO”) for a period of 12 months against Simon Hickey under the Terrorism (High-Risk Offenders) Act 2017 (NSW) (“THRO Act”). In the alternative, an order is sought that the defendant is subject to an extended supervision order for a period of three years (“ESO”).

Mr Hickey is a 46-year-old man who ascribes to a “far right” ideology. His views are long-standing and firmly held; he appears to have held them since 1996. He is not a member of any extremist group, although he was the only corporate sponsor of “The Daily Stormer”, an American far-right group website. He is an electrician by trade and up until recently ran a successful business in Brisbane employing 12 men. By all accounts, he is well-organised and highly motivated in his endeavours.

Up until 2018, Mr Hickey was a business owner with a minor criminal record, married with a child who, in his spare time, spent a considerable time online expressing hatred for women, homosexuals, Jews, Muslims and anyone else who was not a white male (although he has also expressed hatred for many white men including judges, magistrates and barristers). In doing so he has used far-right memes, Nazi insignia, Nordic mythology and other language used by the far right. Although many of Mr Hickey’s posts are laced with violent themes, he had never been convicted of any violent crimes, despite holding these views for over 25 years.

Things began to unravel for Mr Hickey in 2018. His home in Brisbane was raided in 2017 by Fair Trading investigators following an allegation that he had illegally installed CCTV cameras. This event led to him being charged with intimidation against one of those investigators, Ms Siobhan Dash, who he perceived was targeting him for his (known) views. Those charges led to breaches by Mr Hickey (in the form of publication, not actual contact), which led to more raids.

Since 2019, Mr Hickey has spent short periods in custody for breaching restraining orders, contempt of court (including not paying a court fine imposed by the Fair Work Commission in relation to a former employee) and being in possession of prohibited items.

After his family home was the subject of several raids over a period of a year, Mr Hickey devised a scheme to get his revenge on Queensland (“QLD”) police. He manufactured (by using a 3D printer in his home) and sold caltrops, which are road spikes that can be dropped from a car onto the road to prevent another vehicle from chasing your vehicle. At the time he did so he was aware that caltrops were not illegal in QLD. He named this product “HikDeploy”.

The most concerning action taken by Mr Hickey occurred on a date between 15 March and 1 April 2019. On 1 April 2019, a search warrant was executed at his home in Brisbane in relation to a breach of a restraining order (the act relied upon was the posting of a video in relation to Ms Dash executing a search warrant at his premises) and traffic-related offences. A recording was located by police titled “Ebba’s Revenge” which included footage of a massacre which occurred in Christchurch on 15 March 2019. On that day an Australian man, Brendan Tarrant, went on a shooting spree in two mosques in Christchurch killing 51 people and injuring 40 others. The gunman live-streamed the killings. The footage was seen by millions online before it was taken down. Mr Hickey modified the footage of the massacre, made it appear like an online game, included “humorous commentary” and sent it in encrypted form to five people. In plain terms, he expressed approval for what Mr Tarrant had done and referred to it as a “prank”.

Mr Hickey has also produced another film entitled “How the Left has destroyed Australia”. Considerable time was spent at the preliminary hearing playing that recording, which goes for over an hour and a half. It is analysed in the expert report of Dr Julian Droogan and I have considered it further below. Excerpts were played in court and submissions were made about those excerpts. It was submitted that I needed to watch all of that footage in chambers (which I did), but it was not submitted that I needed to watch “Ebba’s Revenge”.

Mr Hickey was due to be released on statutory parole on 12 February 2022, but his parole order was revoked on 11 February 2022 following his classification as a “National security inmate”. This led to him serving his entire sentence in custody. He is currently in an NSW prison although he has no connection with this state. It is proposed by the State that he spend another year in an NSW prison under a CDO. The alternative position is that he remain in NSW for the next three years under an ESO.

As required by s 38 of the THRO Act, a preliminary hearing was conducted before me on 24 October 2022. Ms Jennifer Single SC with Ms Rebecca McEwen of counsel appeared for the State and Mr Emanuel Kerkyasharian with Mr Dev Bhutani of counsel appeared for Mr Hickey. In addition to orders appointing a qualified psychiatrist and a registered psychologist to prepare reports about Mr Hickey, the State sought an interim detention order (“IDO”) for a period of 28 days. In the alternative, an interim supervision order (“ISO”) for a period of 28 days was sought. Those interim orders were sought until any final hearing in this matter.

For the purposes of the preliminary hearing only, Mr Hickey did not take issue with the statutory preconditions for making the order except for the “unacceptable risk” aspect of the test. It was submitted that the “unacceptable risk” test could not be established and that the summons should be dismissed with costs.

As Ms Single conceded at the hearing, this is a difficult matter. Mr Hickey has held extremist views for over 25 years without acting on them in a way that would harm the public. Quite separately to that, his recent interactions with police, Government officials and the courts in QLD have left him profoundly resentful of the legal system and State officials.

Issue:

Whether or not the offender poses an unacceptable risk of committing serious terrorism offence

Ruling:

Despite his poor history of compliance, Mr Hickey does not have any charges of institutional misconduct.

I have also had regard to the observations of Johnson J in State of NSW v Cheema (Preliminary) [2020] NSWSC 876 at [161] as to how to consider an application such as this:

“[161] It is important not to consider the different pieces of evidence relied upon by Plaintiff concerning the acts and thought processes of Defendant in a piecemeal fashion. Like a circumstantial case in a criminal trial, it is necessary to consider the totality of the evidence concerning acts or statements of the Defendant which may shed light upon his thought processes in areas relevant to risk assessment for the purpose of the THRO Act: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46], [48]; R v Baden-Clay (2016) 258 CLR 308: [2016] HCA 35 at [47]”.

Approaching the application as a whole (rather than as a “mosaic”), it is clear that one of the fundamental difficulties with this application is that Mr Hickey does not fit into any particular category of a potential terrorist. Until recently he ran a successful business employing a number of other electricians. Although he has a criminal history, he has no convictions for violence. His first incarceration occurred in 2018 in relation to a breach of court orders.

There can be no doubt that Mr Hickey’s extremist and unpalatable views are long-standing and firmly held. But that is a factor that pulls in opposite directions. The State relies upon that factor as being relevant to his risk; many of his statements supporting racial violence go back to the Stormfront postings in 2013-2015. But Mr Hickey also relies upon that fact in that despite the long-standing nature of his beliefs, he has never committed any crime of violence before let alone any terrorist act. The State relied upon the fact that in October 2011 Mr Hickey observed in relation to Stormfront that “I’m growing disillusioned with the movement. Nobody will get off their ass and do anything.” But, as was submitted on his behalf, he did not in fact resort to violence at that time as a means to achieve his ends.

Having trawled through Mr Hickey’s complicated criminal and court history it is apparent that the only two instances of overt racism he has been involved in (other than through the keyboard of his computer) are, his intolerant abuse aimed at the Queensland Islamic Schools (for which he was convicted and sentenced in 2018) and interaction at a supermarket in 2019 after the Christchurch massacre in which he saw a person apparently of the Muslim faith in the supermarket and suggested to them that New Zealand would be a nice place to be. He was not charged in relation to the second of these incidents. It came to the attention of police because the alleged victim took a photograph of him which was provided to police and Mr Hickey was able to be identified accordingly. Despite the intolerance of these interactions, neither of them could be classified as a “serious terrorism offence”. Nor was his circulation of Ebba’s Revenge” recording treated as a terrorist offence.

Most of the supporting material before me was directed at establishing that Mr Hickey has advocated for violent extremism and terrorist facts in the past. But, as Ms Single quite properly accepted, incitement to commit a terrorist offence is an offence against s 11.4 of the Criminal Code. Similarly, advocating the doing of a terrorist act or the commission of specified terrorism offences is an offence against s 80.2C of the Criminal Code. Neither of these offences fall within Pt 5.3 and are therefore outside the definition of “serious terrorism offence” in the THRO Act. Rather, it was submitted that “similar or closely related conduct might readily amount to a threat of action that falls within the definition of “terrorist act”, or establishing one of the planning, preparation, recruiting or facilitation offences in Pt 5.3”.

Having considered all of the material before me in the context of the relevant statutory test, it seems to me highly probable if not inevitable that Mr Hickey will continue to adhere to his far-right views. It may even be the case that he continues to express views that could be seen to advocate terrorist acts and violent extremism. But the THRO Act provides a higher test than that before any orders can be made, even at this preliminary stage.

I have come to the conclusion that I am not satisfied that the supporting documentation if proved, would establish to a high degree of probability that there is an unacceptable risk that Mr Hickey would commit a “serious terrorism offence” if not detained or supervised.

Orders:

In consideration of the above, I make the following orders:

(1) The Summons is dismissed.

(2) The plaintiff is to pay the defendant’s costs.