Booth v Granata (No 2)

Case [2020] FCA 1425


Federal Court of Australia

Booth v Granata (No 2) [2020] FCA 1425

File number: VID 299 of 2020
Judgment of: WHITE J
Date of judgment: 25 September 2020
Catchwords:

CRIMINAL LAW – application for confirmation of interim control order pursuant to s 104.14 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 – whether the obligations, prohibitions and restrictions are reasonably necessary and reasonably appropriate and adapted.

Held: control order confirmed subject to some variation.    

Legislation:

Criminal Code Act 1995 (Cth) ss 11.2A, 104.2, 104.3, 104.4, 104.12, 104.12A, 104.14, 119.4(1)

Evidence Act 1995 (Cth) s 191

Cases cited: Booth v Granata [2020] FCA 768
Division: General Division
Registry: Victoria
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 18
Date of hearing: 25 September 2020
Counsel for the Applicant: Ms C Fitzgerald
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr C Terry
Solicitor for the Respondent: Patrick W Dwyer Barristers & Solicitors

ORDERS

VID 299 of 2020
BETWEEN:

SANDRA BOOTH

Applicant

AND:

ANTONINO ALFIO GRANATA

Respondent

order made by:

WHITE J

DATE OF ORDER:

25 SEPTEMBER 2020

THE COURT NOTES THAT:

1.The confirmed control order relates to the Respondent, Antonino Alfio Granata.

2.The Court is satisfied on the balance of probabilities that:

(a)For the purpose of s 104.4(1)(c)(iv) of the Criminal Code (Cth), the Respondent has been convicted in Australia of an offence relating to terrorism, namely engaging in conduct in preparation for incursions into foreign countries for the purpose of engaging in hostile activities contrary to s 119.4(1) of the Criminal Code (Cth) by virtue of s 11.2A of the Criminal Code (Cth);

(b)Each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the confirmed control order is reasonably necessary, and reasonably appropriate and adapted, for the purposes of s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code (Cth).

THE COURT ORDERS THAT:

1.Pursuant to s 104.14(7)(b) of the Criminal Code (Cth), the obligations, prohibitions and restrictions imposed on the Respondent by this confirmed control order are those set out in Annexure A to these Orders.

2.The confirmed control order is in force until and including 2 June 2021.

3.The Respondent’s lawyer may attend the AFP Melbourne office at 383 La Trobe Street, Melbourne, between 9 am to 4 pm, Monday to Friday in order to obtain a copy of these Orders.

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

ANNEXURE A

1.          Control 1

1.1.You are required to remain at 258 Station Road, Cairnlea in the State of Victoria or such other premises approved in writing by an AFP Superintendent (the specified premises) between the hours of 12:00 am and 6:00 am local time each day (the curfew period) from the date of this Order until the day that it ceases to be in force.

1.2.You must present and identify yourself at the specified premises during the curfew period upon request by…

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Booth v Granata (No 2) [2020] FCA 1425
Case
[2020] FCA 1425
Decision Date

CaseChat Overview and Summary

The case of Booth v Granata (No 2) involved an application for confirmation of an interim control order under section 104.14 of the Criminal Code. The application was brought by Ms Booth against Mr Granata, who had been convicted of an offence relating to terrorism. The primary legal issue before the court was whether the obligations, prohibitions and restrictions proposed in the interim control order were reasonably necessary, reasonably appropriate and adapted for the purposes specified in section 104.4(1)(d) of the Criminal Code.

The court considered the submissions from both parties, including the affidavits of Ms Booth and the statement of agreed facts, to determine whether the proposed control order met the legal criteria. The court noted that while there was no direct evidence of Mr Granata’s behaviour during the relevant periods, the submissions made by Ms Booth and the agreed facts provided sufficient grounds to conclude that the control measures were necessary and appropriate. The court was satisfied that the formalities required by section 104.14(1A)(c) of the Criminal Code had been complied with, and that the obligations, prohibitions and restrictions sought in the control order were justified for the purposes of preventing or reducing the risk of terrorist acts and protecting the public from terrorist acts.

As a result of the court's findings, the interim control order was confirmed, subject to certain variations. The court made adjustments to Controls 12.1(a) and (b) to clarify the obligations imposed on Mr Granata concerning his first use of the permitted mobile phone. The court also made some formatting and grammatical changes to ensure the order was consistent with the current circumstances. This outcome reflects the court's commitment to ensuring that control orders are both effective and proportionate in addressing the risks posed by individuals convicted of terrorism-related offences.

The final orders confirmed the interim control order with the specified variations and formatting adjustments, ensuring the obligations, prohibitions, and restrictions remained reasonably necessary, reasonably appropriate, and adapted for the specified purposes under the Criminal Code.

Orders

Orders of the court

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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

Section 104.4(1)(c) and (d) are pertinent presently. Subsection (1)(c) contains seven internal alternatives. It was common ground that subs (1)(c)(iv) is satisfied presently because Mr Granata has been convicted in Australia of an offence relating to terrorism or a terrorist act. Section 104.4(1)(d) requires that the Court be satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions to be imposed on the person by the control order is reasonably necessary, reasonably appropriate and adapted for the purpose of achieving at least one of the stated objects.Consideration The effect of s 104.14(1A)(c) of the Criminal Code is that the Court must be satisfied of certain matters commonly referred to as the “formalities”, namely, that:(a)the ICO was served on Mr Granata personally by an AFP member;(b)the AFP member informed Mr Granata of the matters specified in s 104.12(1)(b);(c)the AFP member ensured that Mr Granata understood the information provided to him;(d)an AFP member has served Mr Granata personally with a copy of Ms Booth’s election to confirm the ICO; and(e)a copy of the documents provided to the Minister under s 104.2(3)(aa) and to the Court under s 104.3(d) has been provided to Mr Granata. The affidavits of Mr Stevens indicate compliance with the first four of these formalities. The first affidavit of Ms Booth indicates compliance with the fifth of the formalities. As the Court was previously satisfied that an ICO was appropriate, and was satisfied that each of the obligations, prohibitions and restrictions contained in the then proposed ICO were reasonably necessary and reasonably appropriate and adapted for a s 104.4(1)(d) purpose, and given that the parties have agreed that the ICO should be confirmed (subject to some minor variations), and given that each party has been represented by counsel, I do not consider it necessary to state in detail the reason why I am satisfied about the s 104.4(1)(c) and (d) elements. For the same reasons, it is not necessary to discuss each of the controls and limitations in detail. The Court was not provided with evidence of Mr Granata’s behaviour in the period between his release from prison on 8 May 2020 and the making of the ICO on 2 June 2020, let alone about matters which may give rise to concerns about his conduct. Nor has the Court been provided with evidence of Mr Granata’s behaviour in the period of over three months since the making of the ICO. Nevertheless, Ms Booth’s affidavits and the statement of agreed facts satisfies me that each of the obligations, prohibitions and restrictions sought to be confirmed in the ICO is reasonably necessary and reasonably appropriate and adapted for the purposes specified in s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code. I will, however, revise control so that it is consistent with the contemporaneous circumstances and make some formatting and grammatical changes. I will vary Controls 12.1(a) and (b) so as to make it plain that the obligations imposed on Mr Granata, by those controls, relate to his first use of the permitted mobile phone.