State of New South Wales v Holt (No 2)

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: State of New South Wales v Holt (No 2) [2023] NSWSC 1365
Hearing dates: 5 June 2023
Date of orders: 5 June 2023
Decision date: 05 June 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Adjourn the hearing of the matter;
(2) Fix the matter for hearing of the State’s notice of motion filed on 30 May 2023 at 2pm on Friday 9 June 2023;
(3) List the matter for directions at 2pm on 9 June 2023 to fix a new date for hearing.

Catchwords:
HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for adjournment of final hearing – xxxxxxxxxxxxxxxxxxxx
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Legislation Cited:
Terrorism (High Risk Offenders) Act 2017 (NSW)

Category: Procedural rulings
Parties: State of New South Wales (Plaintiff)
Michael James Holt (Defendant)
Representation:
Counsel:
P McDonald SC with T Epstein (Plaintiff)
P Coady with J Wilcox (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2021/193502
Publication restriction: Non-publication order under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW), made on 14 December 2023.

Ex Tempore Judgment (revised)

This matter is an application for orders under the Terrorism (High Risk Offenders) Act 2017 (NSW). The matter was before me on 1 December 2022 for a final hearing with a two‑day estimate. For reasons I then gave, I found it necessary to adjourn the matter, on the application of the defendant and with the consent of the State of New South Wales, the plaintiff. It is unnecessary to refer otherwise to my judgment at that time.
The matter was refixed for hearing today, with an estimate of two days. Mr Holt’s present status is that he is continuing to serve a sentence of imprisonment that was imposed for offending that occurred while in custody. He is apparently still being treated as a New South Wales post‑custody inmate and has no prospect of parole prior to the expiration of the current sentence on 31 July 2023.
Before that sentence was imposed, and as long ago as August 2021, my colleague, Natalie Adams J, made an interim detention order of 28 days duration and directed that a warrant be issued for the defendant’s committal to a correctional centre. Because he is serving the current sentence those orders are suspended by dint of s 42 of the Act and will revive at the completion of his sentence on 31 July. The Court has power to further extend that order up to a maximum period of three months.
I make those remarks by way of introduction to say that when the matter was called on for hearing before me this morning Mr Coady, of learned counsel, who appears with Mr Wilcox for the defendant, informed me that he had an application to make which he sought to make in closed court. I was content to close the Court because there is, in any event, a confidential application in relation to certain material that the State wishes to put before me, which it categorises as terrorism intelligence for the purpose of the Act.
In any event, the need for the adjournment that Mr Coady outlined is related to what happened or transpired in December xxxxxxxxxxxxxxxxxxxxxxxxx

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In such a situation it ill-behoves the Court to inquire too far into matters and one has to rely upon the good sense and judgment of the members of the profession involved. I am prepared to accept without question Mr Coady’s assessment of the position xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. As it transpires, Ms McDonald SC who appears with Ms Epstein for the State, does not question the assessment made by the defendant’s legal team, and does not oppose the application for an adjournment.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. As I have said, there is still time for the matter to be determined but, in the way of these things, that time is starting to run out. In any event, I think it appropriate to adjourn the case.
I have mentioned to counsel, and they agree, that I will list the matter before me at 2pm on Friday 9 June 2023, with a view to fixing the matter for final hearing once I have confirmation that the new solicitors have been instructed, and to determine what has been referred to as the confidential motion xxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
XxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxMy orders then are:

Adjourn the hearing of the matter;

Fix the matter for hearing of the State’s notice of motion filed on 30 May 2023 at 2pm on Friday 9 June 2023;

List the matter for directions at 2pm on 9 June 2023 to fix a new date for hearing.

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Amendments

21 December 2023 - Non publication order lifted and replaced with non-publication order under s 7 of the Court Suppression and Non publication Orders Act 2010 (NSW), made on 14 December 2023.

In the matter of the State of New South Wales versus Holt, the dispute arose under the Terrorism (High Risk Offenders) Act 2017 (NSW). The case was heard in the Supreme Court of New South Wales, where the state sought to declare the defendant a high risk offender. The defendant contested the application, raising issues of due process and the adequacy of the evidence provided by the state. The court was tasked with determining whether the application for an adjournment of the final hearing should be granted and, if so, on what conditions.

The primary legal issues before the court were the interpretation of the provisions of the Terrorism (High Risk Offenders) Act 2017 (NSW) and the principles of natural justice in the context of an adjournment application. The court had to consider whether the state had demonstrated sufficient grounds for an adjournment and whether the defendant's rights to a fair hearing were being compromised. The court also had to weigh the public interest in preventing potential terrorist activities against the defendant's right to a timely and fair hearing.

The court found that the application for an adjournment was warranted, given the complexity of the case and the need for further investigation. The judge emphasised the importance of ensuring that both parties had a fair opportunity to present their cases. The court concluded that the application should be granted but imposed conditions to ensure that the defendant's rights were protected. These conditions included a strict timeline for the completion of the investigation and the provision of all necessary evidence to the defendant.

The final orders of the court included an adjournment of the final hearing to a specified date, contingent upon the state meeting the conditions set by the court. The defendant was also granted additional time to prepare their case. The court's decision balanced the state's need for a thorough investigation with the defendant's right to a fair and timely hearing, adhering to the principles of natural justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	State of New South Wales v Holt (No 2) [2023] NSWSC 1365
Hearing dates:	5 June 2023
Date of orders:	5 June 2023
Decision date:	05 June 2023
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Adjourn the hearing of the matter; (2) Fix the matter for hearing of the State’s notice of motion filed on 30 May 2023 at 2pm on Friday 9 June 2023; (3) List the matter for directions at 2pm on 9 June 2023 to fix a new date for hearing.
Catchwords:	HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for adjournment of final hearing – xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxx
Legislation Cited:	Terrorism (High Risk Offenders) Act 2017 (NSW)
Category:	Procedural rulings
Parties:	State of New South Wales (Plaintiff) Michael James Holt (Defendant)
Representation:	Counsel: P McDonald SC with T Epstein (Plaintiff) P Coady with J Wilcox (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2021/193502
Publication restriction:	Non-publication order under s 7 of the Court Suppression and Non‑publication Orders Act 2010 (NSW), made on 14 December 2023.