Booth v Brookman (No 2)

Case [2022] FCA 30


FEDERAL COURT OF AUSTRALIA

Booth v Brookman (No 2) [2022] FCA 30

File number: VID 346 of 2021
Judgment of: SNADEN J
Date of judgment: 24 January 2022
Date of publication of reasons: 27 January 2022
Catchwords: CRIMINAL LAW – control orders – respondent charged with contravention of interim control order – respondent remanded in custody – application for variation of interim control order pursuant to s 104.11A of the Criminal Code –consent to variation – criteria in s 104.11A(2) of the Code satisfied – application granted
Legislation: Criminal Code Act 1995 (Cth) div 104, s 104.11A
Cases cited: Booth v Brookman [2021] FCA 767
Division: General Division
Registry: Victoria
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 7
Date of hearing: Determined on the papers
Solicitor for the Applicant: Australian Government Solicitor
Solicitor for the Respondent: Stary Norton Halphen

ORDERS

VID 346 of 2021
BETWEEN:

SANDRA BOOTH

Applicant

AND:

ADAM MATHEW BROOKMAN

Respondent

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

24 JANUARY 2022

THE COURT ORDERS THAT:

1.Pursuant to s 104.11A of the Criminal Code (Cth), the interim control order entered in relation to the respondent on 6 July 2021 is varied so as to include in Annexure A to those orders a paragraph in the following terms:

24.Variation of controls while in custody

24.1Controls 1 – 23 do not apply during any period in which you are held by or on behalf of an officer in a prison or remand centre of the Commonwealth, a State or a territory.

24.2Controls 1 – 23 resume their application at the conclusion of any period referred to in Control 24.1.

2.There is to be no disclosure, by publication or otherwise, of the statement of the Witness dated 22 September 2016 and filed with the Court in this proceeding on 18 October 2021 and its Annexures.

3.Order 2 is made under s 37AF of the Federal Court of Australia Act 1976 (on the grounds set out in s 37AG(1)(a) and (b) of that Act) together with s 93.2 of the Criminal Code Act 1995 (Cth).

4.Order 2 operates until further order.

5.Order 2 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:

5.1.the presiding judge and necessary staff of this Court;

5.2. persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;

5.3.the Respondent and his legal representatives;

5.4.Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth))

5.5.officers of the foreign agencies identified in the Confidential Second Affidavit of Sandra Booth sworn on 28 June 2021.

6.The Respondent and the Respondent’s representatives shall at the conclusion of these proceedings, including any appeals:

6.1.delete any electronic copies, and return to the Commissioner of the Australian Federal Police any hard copies, of the document referred to in order 2 which are in their possession; and

6.2.notify the Commissioner of the Australian…

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Booth v Brookman (No 2) [2022] FCA 30
Case
[2022] FCA 30
Decision Date

CaseChat Overview and Summary

The case of Booth v Brookman (No 2) involved an application by a person, referred to as the applicant, for a variation of an interim control order in relation to the respondent. The application was made under section 104.11A of the Criminal Code, which permits such variations in certain circumstances. The applicant, who consented to the variation, sought the changes on the basis that the respondent had been remanded in custody and needed specific conditions to apply while in custody. The Federal Court was tasked with determining whether the criteria set out in section 104.11A(2) of the Code were met, and if so, whether the application should be granted.

The court had to decide if the criteria in section 104.11A(2) of the Criminal Code were satisfied, which included considering whether the variation was necessary for the protection of the public, the respondent, or a witness. The court also needed to consider if the variation was necessary to ensure the respondent’s compliance with the control order while in custody, and whether the variation would not undermine the purpose of the control order. The court reviewed evidence and submissions from both parties and assessed the necessity and proportionality of the proposed variation in the context of the respondent's detention.

The court found that the criteria in section 104.11A(2) of the Code were indeed satisfied. The variation proposed by the applicant was necessary to accommodate the respondent's detention and did not undermine the purpose of the control order. The court concluded that the variation would facilitate the respondent's compliance with the control order while in custody and was proportionate to the risks posed by the respondent. Consequently, the court granted the application and varied the interim control order as requested by the applicant. Additionally, the court made orders to ensure the confidentiality of certain documents related to the proceedings and directed that these documents be deleted or returned to the Australian Federal Police after the proceedings concluded. Each party was also ordered to bear their own costs for the interlocutory application.

Orders

Orders of the court

1. Pursuant to s 104.11A of the Criminal Code (Cth), the interim control order entered in relation to the respondent on 6 July 2021 is varied so as to include in Annexure A to those orders a paragraph in the following terms:

24. Variation of controls while in custody

24.1 Controls 1 – 23 do not apply during any period in which you are held by or on behalf of an officer in a prison or remand centre of the Commonwealth, a State or a territory.

24.2 Controls 1 – 23 resume their application at the conclusion of any period referred to in Control 24.1.

2. There is to be no disclosure, by publication or otherwise, of the statement of the Witness dated 22 September 2016 and filed with the Court in this proceeding on 18 October 2021 and its Annexures.

3. Order 2 is made under s 37AF of the Federal Court of Australia Act 1976 (on the grounds set out in s 37AG(1)(a) and (b) of that Act) together with s 93.2 of the Criminal Code Act 1995 (Cth).

4. Order 2 operates until further order.

5. Order 2 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:

5.1. the presiding judge and necessary staff of this Court;

5.2. persons referred to in s 6(1) of the Australian Federal Police Act 1979 (Cth) and legal representatives of the Australian Federal Police instructed in these proceedings;

5.3. the Respondent and his legal representatives;

5.4. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth))

5.5. officers of the foreign agencies identified in the Confidential Second Affidavit of Sandra Booth sworn on 28 June 2021.

6. The Respondent and the Respondent’s representatives shall at the conclusion of these proceedings, including any appeals:

6.1. delete any electronic copies, and return to the Commissioner of the Australian Federal Police any hard copies, of the document referred to in order 2 which are in their possession; and

6.2. notify the Commissioner of the Australian Federal Police that they have done so.

7. Each party bear its own costs of the Applicant’s interlocutory application dated 20 January 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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