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Attorney-General v Temssah

Attorney-General v Temssah

Case [2024] VSC 172 12 April 2024

Jurisdiction

Interlocutory Orders

Suppression and pseudonym orders

Interim supervision order

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST

S ECI 2024 00807

ATTORNEY-GENERAL OF THE COMMONWEALTH	Plaintiff
v
KHALED TEMSSAH	Defendant

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 & 19 March 2024
DATE OF JUDGMENT:	12 April 2024
CASE MAY BE CITED AS:	Attorney-General v Temssah
MEDIUM NEUTRAL CITATION:	[2024] VSC 172*

*This is a redacted version of the judgment that was published to the parties on a confidential basis.

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PUBLIC LAW – Application for an interim supervision order (ISO) under the Criminal Code Act 1995 (Cth) – Defendant sentenced to imprisonment for terrorism offences in 2021 – Sentence completed – Whether Court has jurisdiction to make an ISO after defendant released from custody – Whether there are reasonable grounds for considering that an extended supervision order will be made – Whether there are reasonable grounds for considering that each of the conditions to be imposed are reasonably necessary, and reasonably appropriate and adapted for the statutory purpose - Interim supervision order granted – Criminal Code Act 1995 (Cth), ss 105A.3A, 105A.5, 105A.6B, 105A.7A, 105A.9A, 105A.18 – New South Wales v BP (No 2) [2019] NSWSC 806; Attorney-General v Hadashah Sa’Adat Khan [2022] VSC 507; Minister for Home Affairs v Benbrika (First review) [2022] VSC 169; Attorney-General of the Commonwealth of Australia v Amin [2023] NSWSC 1586.

PRACTICE AND PROCEDURE – Judgments and orders – Suppression and pseudonym orders – Application to suppress various materials – Certain documents to be made confidential – Certain persons to be referred to by pseudonym – Regina v Lodhi [2006] NSWSC 596; R v Lodhi (2006) NSWLR 573; R v Benbrika & Ors (Ruling 1) [2007] VSC 141; ABC v D1; ex parte Herald & Weekly Times Ltd [2007] VSC 480.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Coghlan KC and Mr Tran with Mr Minson	Australian Government Solicitor
For the Defendant	Mr Nathwani SC with Ms Clark and Ms Grant	Robinson Gill Lawyers

TABLE OF CONTENTS

Introduction............................................................................................................................ 1

Confidentiality and suppression........................................................................................ 5

Corrections Victoria 5
Chief Commissioner of Victoria Police 12

Jurisdictional objection...................................................................................................... 16

The offending....................................................................................................................... 23

Interim supervision orders - statutory requirements................................................... 26

‘Reasonable grounds for considering that an extended supervision order will be made in relation to the offender’...................................................................................................... 27

Unacceptable risk  29
Mr Temssah’s submissions  37
Consideration  41

‘Reasonable grounds for considering that each of the conditions to be imposed … is reasonably necessary, and reasonably appropriate and adapted …’......................... 43

Principles 43
The conditions 45

ANNEXURE A...................................................................................................................... 49

HIS HONOUR:

Introduction

On 15 September 2021, Khaled Temssah, an Australian citizen of Lebanese heritage, pleaded guilty to one charge of engaging in conduct in preparation for an incursion into a foreign country for the purpose of engaging in hostile activity (the offence) contrary to s 119.4(1) of the schedule to the Criminal Code Act 1995 (Cth) (the Code). In summary, between 3 June 2019 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Temssah

Details

AGLC: Attorney-General v Temssah [2024] VSC 172
Case: [2024] VSC 172
Decision Date: 12 April 2024

CaseChat Overview and Summary

The Attorney-General applied for an interim supervision order (ISO) under the Criminal Code Act 1995 (Cth) in relation to an individual, Temssah, who had been sentenced to imprisonment for terrorism offences in 2021 and had completed his sentence. The application was brought before the Supreme Court of Victoria, and the court had to determine whether it had the jurisdiction to make an ISO after Temssah's release from custody. Additionally, the court had to decide whether there were reasonable grounds for considering that an extended supervision order would be made and that each of the conditions to be imposed were reasonably necessary and appropriate.

The court examined the relevant statutory provisions and previous cases to determine the jurisdiction and the necessary criteria for making an ISO. The court found that it had the jurisdiction to make an ISO under section 105A.3A of the Criminal Code Act 1995 (Cth) and that there were reasonable grounds for considering that an extended supervision order would be made. The court also found that the proposed conditions were reasonably necessary and appropriate for the statutory purpose. The court considered the risk posed by Temssah and the need to protect the public from further criminal conduct.

The court granted the application for an ISO, subject to certain conditions, including electronic monitoring, curfew, and prohibitions on contacting certain individuals. The court also made orders for the suppression of various materials and for certain documents to be made confidential and certain persons to be referred to by pseudonym. The court cited relevant cases such as Regina v Lodhi, R v Benbrika & Ors (Ruling 1), and ABC v D1; ex parte Herald & Weekly Times Ltd to support its decision on suppression and pseudonym orders.

The final orders included the grant of an interim supervision order, suppression and pseudonym orders, and orders for the production of certain documents. The court also made orders for the preservation of anonymity of certain individuals and the suppression of certain materials.

Orders