Auckland mall terror attack: Your questions answered by Herald journalists Jared Savage and Sam Hurley

The terror attack that unfolded at the LynnMall Countdown on Friday continues to prompt questions as to just how a man deemed such a high risk of violent offending was able to stab six people in a supermarket while on bail under heavy surveillance and pending deportation orders.

Only last month, Sam Hurley and Jared Savage reported the assailant could not be charged as a terrorist. Today, they took subscribers’ questions on how and if the attack could have been averted, whether our counter-terror and immigration laws need to change, and how a mentally ill “lone wolf” became radicalised. Here’s how the discussion unfolded – it’s been lightly edited for clarity.

Q: You guys have been following this case for months. How did it come across your radar?
I remember getting a phone call in about June 2017 from a source saying that Samsudeen had been arrested. I was no longer living in Auckland, so Sam went along to court to pick up the charging documents. Since then, we’ve worked together to follow the case through the courts, with Samsudeen in custody for most of that time. Sam recently sat through the recent trial in May and was able to observe him up close. Afterwards, we wrote a piece about the gap in the terror law and revealed Samsudeen’s circumstances were the reason why the Government proposed to change the terror law.

Q: If the new counter-terrorism laws were in place before the attack, could they have prevented it?
SH: The short answer is maybe. If the new law was available when the Crown attempted to charge him under the Terrorism Suppression Act 2002 last year then Samsudeen likely would’ve been charged with the offence of planning a terror attack. However, there is no guarantee it would have resulted in a conviction and prison sentence, and therefore prevented a future attack.

Q: Could the judge have legally denied Samsudeen bail with regard to his active charges for attacking the Corrections officer?
SH: In June 2020 he assaulted Corrections officers at Mt Eden prison. He was released on July 13, 2021, on bail while still facing the assault charges. He had also just been sentenced to 12 months’ supervision on other charges. The judge granted bail after considering a joint memorandum from Crown and defence counsel. Bail was granted on several conditions, including those as part of his supervision sentence. The judge had little option but to release Samsudeen because he had already spent years in custody, which likely would’ve exceeded the sentence for the assault charges, if convicted.

Q: One article has suggested that the Immigration Minister at the time – [Ian] Lees-Galloway – could have taken it on himself to deport him. Is that correct?
JS: When the attacker was arrested in 2017, Immigration NZ considered whether it should put a case to the Minister of Immigration to certify that the person is a threat or risk to security and therefore should be deported under section 163 of the Immigration Act. However, a deportation order cannot be made under section 163 of the Immigration Act while a person is a refugee or has made a claim for refugee or protected person status that is still to be heard. This includes while a decision to cancel refugee status is being appealed (which was the case here).

Q: Why was he not deported on character grounds? Considering he had been in prison for over 12 months? We have people deported for far less.
JS: Unlike Australia, we can’t simply deport someone on character grounds. In this case, Immigration officials had tried to deport him on two different grounds (as his refugee status was revoked, and on the basis of his criminal convictions). However, he appealed against his refugee status being revoked and someone cannot be deported until that decision is final. Even if successful, it seems that unlikely he would be deported because he probably would have qualified to stay as a “protected person” (because of the risk to his safety if sent back to Sri Lanka). … The efforts to deport the New Lynn attacker has been underway since 2018 and largely held up because of appeal rights. A law change may come from this. Quote from the PM: “In July this year I met with officials in person and expressed my concern that the law could allow someone to remain here who obtained their immigration status fraudulently and posed a threat to our national security. I asked for work to be undertaken to look at whether we should amend our law, in the context of our international obligations.”

Q: Can you please explain the “protected person” reasoning for not deporting S?
JS: This is largely why he had name suppression until his death. If he was named as an Isis sympathiser, then deported, this would put him at risk in Sri Lanka. Oddly, the risk posed by Samsudeen was that police stopped him from joining Isis in Syria. We had to under our international obligations to UN to stop foreign returning fighters, yet doing so prompted Samsudeen to talk about “lone wolf” attacks in NZ. As far as being a “protected person”, it was highly likely that he would qualify (even if his refugee status was permanently revoked) because of the risk to his safety in his homeland.

Q: Much has been made about how this individual was not supported enough and attempts to rehabilitate him did not go far enough. What was attempted by the Government, do you think they did enough? What insight do you have into how much the individual in question wanted to partake?
SH: Corrections identified Samsudeen as someone with violent extremist views and developed an individualised plan focused on disengaging him from the potential use of violence. Corrections also sought advice from the Countering Violent Extremism community engagement forum about how to best support rehabilitation and reintegration. The plan was also to have him assessed and treated by a Corrections psychologist. Attempts were made to provide him with mental health support while he was in prison, however he refused to engage. He also refused to meet with the psychologist. Corrections also engaged with the local Muslim community to have Samsudeen meet with an imam and talk about his spiritual beliefs. He met with the imam twice, however, Corrections said he didn’t engage in a meaningful way.

Q: While many reports say the law didn’t allow a conviction for planning an attack, the law did cover planning for and implementation steps for a terrorist act. However the Judge seemed to find that the “evidence of plans” wasn’t detailed enough. I wonder if it requires a change in the legal threshold from “beyond reasonable doubt” to “preponderance of evidence”?
JS: Under section 25 of the TSA, a terrorist act is deemed to have been carried out when planning or preparations have taken place. The Crown argued that S, in purchasing the knife was preparing to commit a “lone wolf” terrorist attack in line with the Islamic State ideology, inspired by the videos he was watching. Because a planned attack is deemed to have occurred, under section 25 of the law, the Crown said an inference could be drawn that the “knife attack” by S was to advance an ideological, political or religious cause with the intention to induce terror. The problem with this argument, pointed out by his defence lawyer, was that section 25 related to a discrete part of the TSA which lays out the grounds on which the Prime Minister can designate a “terrorist entity”. The Prime Minister can use section 25 to label an individual or group as a terrorist entity, allowing police to freeze bank accounts and other preventive action, before an attack might take place. But it does not, however, have any effect on whether someone can be charged with terror attack, Justice Downs ruled, therefore S purchasing a knife cannot be considered a terror attack in the way the Crown argued.

Q: How much weight has been given to obligations to honour international treaties vs how much weight has been given to protecting NZ citizenry?
JS: It’s a tough one, isn’t it. In this case, the risk to NZ solely came about because we honoured our international obligations (by stopping him from flying to Syria). And subsequent efforts to deport him have been slowed by his right to appeal. People have ended up hurt as a result, clearly. But, NZ is arguably a safer place because of the assistance/intelligence we get from better-resourced allies

Q: If we can change health legislation quickly in response to the Covid threat, why doesn’t the Government act as quickly in restricting freedom for individuals awaiting deportation?
JS: Without trying to be glib, I think it’s largely down to the risk posed to an entire population from a global pandemic, as opposed to the risk posed by a small number of potential offenders. Events tend to push Government into action as well, hence why the PM says Parliament will move quickly to push through changes to the law.

Q: How much money would surveilling [have] cost? Also, if he was still alive what would his sentence be in NZ (if we didn’t deport him)?
SH: It’s not yet known how much the surveillance cost, however, Police Commissioner Andrew Coster has said it isn’t a consideration when conducting such operations. The figure will no doubt come out in time though. As to your second question, if Samsudeen had survived his attack he likely would’ve been charged with several counts of attempted murder and also charged with committing a terrorist act. If convicted, everyone who attempts to commit murder is liable to imprisonment for a term not exceeding 14 years. While a person who commits a terrorist act is liable on conviction to imprisonment for life or a lesser prison term determined by a judge.

Q: How useful is the “lone wolf” moniker? Police might not be seeking anyone else in connection with the attack, but the attacker was not radicalised in a vacuum, and it’s undisputed he subscribed to an ideology that’s inspired plenty of others around the world to commit acts of violence in its name. So is it still fair to call him a lone wolf if he’s part of an online community or network?
SH: The “lone wolf” term is used to simply describe an attack carried out by a single person, rather than the coordinated efforts of a terror cell or group. Lone wolf attacks are incredibly hard to prevent because they are often unsophisticated, with the terrorist turning everyday things into weapons – such as a knife or car. Samsudeen was likely radicalised online and in his living room by Isis propaganda – easily accessed on the web – rather than following orders from a cell. He was known to be actively searching for this and was convicted of possessing Isis propaganda advocating for attacks.

Q: Why is the Govt having to take another “urgent” look at our counter-terror laws now, more than two years after the mosque attacks in Christchurch?
JS: The terrible events of Christchurch led to swift and immediate law changes in relation to the banning of semi-automatic weapons, as well as some new terrorism laws. This was followed by the Royal Commission of Inquiry which was released late last year. It made a number of recommendations, and the Government responded by introducing the Counter-Terrorism Bill in May. This bill included the creation of a “terrorism planning offence” as the current legislation did not allow prosecutors to charge someone for planning, or preparing for an attack. The known threat posed by the Auckland terrorist was part of the reason for that law change (he was a case study) which has now been expedited since the attack on Friday. So to be fair to the Government, change was already underway – despite this gap in the law identified as far back as 2014. I note this new terror offence was unlikely to have stopped the Christchurch terrorist, as authorities were unaware of the threat he posed until it was too late.

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