The Crown previously tried to use anti-terror laws against the Isis sympathiser shot dead by police following a knife attack at a West Auckland supermarket – but it was turned down by the courts.

The man was facing charges of possessing a hunting knife and possessing objectionable publications that included Isis videos of extreme violence, and the Crown sought to also have him charged under the Terror Suppression Act, claiming he was planning a “knife attack”.

But in a judgment released in July 2020, Justice Mathew Downs declined the application after reviewing the legislation and what it allowed.

The man was later found guilty of possessing two objectionable publications and refusing to comply with a police search, but was acquitted of possessing a hunting knife and possessing an objectionable video.

The man cannot be named, and Prime Minister Jacinda Ardern was tight-lipped on the case on Friday due to suppression orders.

“The Crown is seeking the court’s urgent lifting of the suppression orders, which will be filed this evening,” a spokesperson for Ardern said.

Justice Downs pointed out the United Kingdom and Australia have laws relating to planning terror attacks that are punishable by life in prison.

“However, it is not open to the court to create an offence, whether in the guise of statutory construction or otherwise. The issue is for Parliament.”

He said he could not know what the planned “knife attack” scenario put forward by the Crown actually entailed, and therefore he could not evaluate it.

“Is it, for example, an attack in broad daylight in a busy shopping centre while the defendant repeatedly yells support for Islamic State? Or an attack under cover of darkness with no witnesses in which the defendant says nothing?”

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He said the first example could meet the requirements under the terror act to lay the charge, while the second example may not.

“The example highlights a fundamental problem with the proposed interpretation. Conjecture is exhorted as the premise for criminal liability potentially punishable by life imprisonment.”

The judgement contains background information on the man. He was originally from Sri Lanka and arrived in New Zealand in 2011.

Five years later, in 2016 he was warned by the police after posting material on the internet.

The posts, described as “staunchly anti-Western” in court documents, included graphic violence and comments advocating extremism.

Court documents show the man continued posting similar content online.

In 2017, he was arrested at the airport after telling a person at an Auckland mosque he wanted to go to Syria “to fight for Isis”.

When police searched his home they found a large hunting knife under a mattress and further “fundamentalist material”. There was also a photograph of the man posing with a firearm and links saved on his computer to where firearms, cross bows and other military equipment could be bought online.

In 2018, he admitted charges of distributing material and the offensive weapon charge was dropped.

He would eventually be sentenced to supervision but on his first day on bail, the man searched the internet for camouflage trousers, his own name, news stories about his case and “Isis allegiance”.

The following day he bought another hunting knife, and he was later arrested.

Again, the police executed a search warrant, finding the new knife and a throwing star. An analysis of his computer revealed further Isis related searches online.

Police wanted to charge him with engaging in a terrorist act by “planning or otherwise preparing to cause the death of, or serious bodily injury to one or more persons”.

Justice Downs questioned whether planning or preparing an attack constituted a terrorist act.

The Crown said it did. Prosecutor Henry Steele said the man’s purchase of the knife was the “triggering act” and the other evidence showed the man planned to use it.