The Auckland mall terrorist faced further charges, including for possession of a throwing star, which were dismissed by the High Court last year.
Ahamed Aathil Mohamed Samsudeen stabbed several shoppers during a frenzied attack at a supermarket at LynnMall last Friday before being shot dead by an elite police tactical team, which had been constantly following his movements.
The 32-year-old born in Sri Lanka came to New Zealand in October 2011 on a student visa. He was granted refugee status two years later, which was later revoked as authorities attempted to deport him after discovering his social media posts showed extremist beliefs and an allegiance to the terrorist group Islamic State.
Samsudeen had faced several criminal charges during his time in New Zealand, the Herald has earlier revealed, and was on bail at the time of Friday's attack for assaulting two Corrections' officers while in custody last year.
Following a ruling by the High Court, the Herald can today report Samsudeen faced two further charges alleging possession of an offensive weapon.
However, these were both dismissed by Justice Geoffrey Venning after a hearing on November 12 last year because, on the evidence, a properly directed jury could not reasonably have convicted Samsudeen of those charges.
The decision came just months after Justice Mathew Downs ruled the Crown could not charge Samsudeen under the Terrorism Suppression Act 2002 because planning a terror attack was not an offence. Police had suspected Samsudeen, who first came to the attention of authorities in 2016 for his social media posts, was planning a lone wolf knife attack.
"Some among us are prepared to use lethal violence for ideological, political or religious causes. The absence of an offence of planning or preparing a terrorist act ... could be an Achilles' heel," Justice Downs said in his judgment, first reported by the Herald last month.
The charges against Samsudeen that were dismissed came after his then lawyer Belinda Sellars QC - now a District Court judge - sought a discharge under s147 of the Criminal Procedure Act 2011 (CPA) over three charges.
The charges included two counts of possession of a hunting knife and the third being possession of a metal throwing star, which police alleged Samsudeen intended to use to commit an offence involving bodily injury or the threat or fear of violence.
Justice Venning explained in his ruling the principles to apply on such applications for a dismissal of charges are well understood and settled.
"The Court may dismiss a charge under s 147(4)(c) of the CPA if satisfied as a matter of law a properly directed jury could not reasonably convict the defendant of that charge," he said.
"The issue is whether the evidence is sufficient in law if accepted to prove the case. If it is then the issue should be left to the jury."
Police, while monitoring Samsudeen's activities, noticed he had booked a flight to Singapore on May 19, 2017, for the following morning. He was suspected of intending to travel onward to Syria and fight for Islamic State, but Samsudeen himself later claimed he was going for a holiday.
At 11pm on May 19 police located and arrested Samsudeen at Auckland Airport. When spoken to by police he made several comments about a knife.
"Did they find a knife in my house? There's a knife in my house under my bed," he said, according to High Court documents.
A brief conversation with police was recorded as follows:
Police: "Where did you get the knife from?"
Samsudeen: "The shop. A normal shop on K Rd, like a $2 shop."
Police: "When did you get that?"
Samsudeen: "Maybe last year. Some guys came last year and checked my passport and I was scared so a few months later I saw it and thought I'd buy it. I looked up the law and it said it was okay to have it as long as it's kept at home. Those guys come when I wasn't home and moved my passport. I thought someone could come in and kill me."
Police then executed a search warrant at Samsudeen's Auckland apartment and found material that glorified violence, including images of him posing with an air rifle, and a large hunting knife hidden under his mattress.
He was charged with a number of offences, including unlawful possession of the knife and held in custody.
On June 29, 2018 he pleaded guilty to representative charges of knowing distribution of restricted material under the Films, Videos, and Publications Classifications Act, two charges of dishonestly using a document and one charge of refusing to assist police.
The knife charge was withdrawn by consent but later refiled.
After pleading guilty, Samsudeen was briefly released on bail to appear for his eventual sentence in September 2018. It was to be a year of supervision imposed by Justice Edwin Wylie, who concluded a custodial sentence could not be imposed because of Samsudeen's prior remand status.
Both the Crown and defence counsel agreed such a sentence was appropriate
However, before his sentencing, and within a day of being released on bail and back in the community, Samsudeen bought an identical hunting knife to that which police seized.
He was again arrested and charged by police, including now for possession of the throwing star, and held in custody.
In arguing to dismiss the three charges, Sellars said by intending to travel to Singapore Samsudeen "lost" control of the knife underneath his bed.
Further, she said there was no evidence to support that Samsudeen intended to use the knife underneath his bed to commit an act of violence as the legislation required.
"Presumably for some time beforehand Mr Samsudeen intended to leave New Zealand as was confirmed by the statement of his associate," Justice Venning's decision reads.
Samsudeen had told a fellow worshipper at a mosque that he planned to join Isis in Syria, according to police. Sellars also noted police material suggested Samsudeen appeared to have liquidated the few assets he had prior to departure.
The Crown response was it was evident from Samsudeen's admissions to police that he knew of the knife's presence and the extremist material in his Facebook posts disclose his intention to use it.
"A jury could infer that Mr Samsudeen had an intention to exercise control over the knife by leaving it in the apartment and by retaining the keys to the apartment which enabled him to access the knife if for any reason he had decided not to travel, or on his return to New Zealand," Justice Venning said in his decision.
"The more difficult issue is whether the possession that he had in that way was in circumstances that prima facie (based on the first impression) showed an intention to use the knife to commit an offence involving bodily injury or the threat or fear of violence."
The Crown also argued the absence of any other suggestion of legitimate use and the fact the knife was concealed are consistent with an intent to use the knife to commit an offence.
However, Justice Venning said he did not consider there was any relevant evidence to support the Crown's submission that the surrounding circumstances of time, place or manner show Samsudeen was in possession of the knife with an intention to use violently.
"Given the physical disconnect between Mr Samsudeen and the knife on 19 May 2017, while he may have been in possession of it in that he retained ultimate control of it, there is no evidence to support a finding that on the face of it he intended to use the knife to commit an offence involving bodily injury or the threat or fear of violence," Justice Venning said, dismissing the charge.
"There must be a connection between the possession and the circumstances of time, place, or occasion, which is lacking in the present case."
After Samsudeen's arrest while on bail in August 2018 for his earlier charges, police searched his address and found the throwing star in his room.
The Crown again argued from the material contained in his Facebook posts it can be inferred he was preparing to perpetrate an attack in which he was going to use weapon.
But Justice Venning accepted Sellars' submission that this was "effectively speculative and unsupported by the evidence".
"The physical connection and access to the throwing star are closer and more proximate than in the case of the knife, but the injury and torture depicted by the allegedly offensive videos are far more extensive and extreme than could be inflicted by the throwing star," Justice Venning said, again dismissing the charge.
The third charge, however, was not dismissed and Samsudeen successfully defended it at a High Court trial this year, where he was also facing charges for possession of objectionable material relating to Isis propaganda and failing to comply with a police search.
At about 2.30pm on August 8, 2018 Samsudeen and an associate went to an East Tamaki shop that sold hunting knives.
Samsudeen spoke with a staff member about buying a 10-inch knife and said he viewed it online and wanted a long one.
He picked up the knife from inside the cabinet, held it and checked the blade. Samsudeen also discussed the quality of the knife with the staff member before saying he would take it.
It was the exact same model as the knife found under his mattress in May 2017.
Samsudeen paid $39 in cash for the knife and requested it be couriered to his address.
In explanation to the shop attendant for having it couriered, Samsudeen said he did not want to take the knife with him because "as a dark man people might think he was a bad person".
To prove this charge the Crown had to establish beyond reasonable doubt that Samsudeen was in a public place, knowingly had a knife "with him", and had no lawful authority or reasonable excuse to have the knife.
"In this instance Mr Samsudeen physically handled the knife and then purchased it. He had immediate control over it. He bought it, it was his and he directed the shopkeeper to courier it to his address," Justice Venning said.
"There is sufficient evidence that he knowingly had the knife with him, at least for a time in a public place."
It was also relevant that over the preceding days what Samsudeen's internet searches were, Justice Venning said. Samsudeen's internet history was earlier reported by the Herald in May.
The searches included: Safety and security guidelines for lone wolf mujahedeen; Islamic State dress, enemies of Allah, Isis allegiance, and heroes of the Islamic state.
Other videos also provided instruction on the use of the knife and footage of attempted decapitation using a hunting knife.
"Of course, Mr Samsudeen could advance an innocence explanation for possessing it, but that would be for trial," Justice Venning said.
After his trial in May this year, a jury found him guilty of two charges of possessing objectionable propaganda-style Isis material. The material was two nasheeds (hymns and chants) with images.
One referenced martyrdom, featured a black-clad fighter with a machine gun, Isis flag, and lyrics advocating for jihad and decapitation. The other, titled "We came to fill horror everywhere", depicts men dressed in black with assault rifles, the Isis flag and a city on fire.
He was acquitted of a third charge of possessing an objectionable graphic Isis video, which depicted a prisoner being decapitated among other violent scenes.
Samsudeen was also acquitted of possession of an offensive weapon in a public place, the knife he bought at the East Tamaki shop, but found guilty of failing to comply with a police search for refusing to provide police with his pin code for his devices.
He was later sentenced to 12 months' supervision by Justice Sally Fitzgerald in July, who declined to impose a condition of GPS monitoring.
Crown prosecutor Henry Steele said Samsudeen, who had been held in custody for about three years, said at the hearing a supervision sentence was appropriate but authorities still held the same concerns about him.
"He has been a real concern to the Crown for a number of years and those concerns remain," Steele said.
He sought GPS monitoring for Samsudeen but conceded: "GPS monitoring will not prevent Mr Samsudeen from accessing the types of material which have resulted in the charges for which he has been found guilty."
A week later he was granted bail by the District Court judge after receiving and considering a joint memorandum from Crown and defence counsel.
Crown sources said bail was not opposed because the amount of time Samsudeen had already spent in prison, if bail was denied, would be longer than the maximum sentence even if he was convicted of the assaults. Samsudeen's bail was then varied on July 16 at the request of counsel.
The bail variation judgment noted Samsudeen had an "antiauthoritarian stance towards police" and believed he had been set him up to fail if police could directly monitor his internet activities rather than a probation officer.
Samsudeen was due to appear in court again in late October, when his bail and conditions were to reviewed by a judge.
Labour's new Counter-Terrorism Legislation Bill, which passed its first reading in May, would make it a criminal offence to plan or prepare for a terrorist attack.
On Saturday afternoon, Prime Minister Jacinda Ardern said work was under way to change the law by the end of the month.