Booth v Kaya

Case [2020] FCA 25

FEDERAL COURT OF AUSTRALIA

Booth v Kaya [2020] FCA 25

File number: VID 1377 of 2019
Judge: ANASTASSIOU J
Date of judgment: 22 January 2020
Catchwords: CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – whether respondent was convicted of an offence “relating to terrorism” – whether respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country – reasonably necessary – reasonably appropriate and adapted – application granted in part
Legislation:

Crimes Act 1914 (Cth), s 3(1)

Criminal CodeAct 1995 (Cth), ss 104.1, 104.4, 119.4

Cases cited:

McCartney v EB (2019) 263 FCR 170

R v Cerantonio & Ors [2019] VSC 284

Thomas v Mowbray (2007) 233 CLR 307

Date of hearing: 20 December 2019, 20 January 2020
Date of last submissions: 20 January 2020
Registry: Victoria
Division: General Division
National Practice Area: Federal Crime and Related Proceedings
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: Ms C. Fitzgerald
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr M. Goldberg
Solicitor for the Respondent: James Dowsley & Associates

ORDERS

VID 1377 of 2019
BETWEEN:

SANDRA BOOTH

Applicant
AND:

MURAT KAYA

Respondent

JUDGE:

ANASTASSIOU J

DATE OF ORDER:

22 JANUARY 2020

THE COURT ORDERS THAT:

Interim control order

1.The Court makes an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule.

Confirmation hearing

2.The confirmation hearing of the interim control order is listed at 10:15 am on 3 June 2020. 

Endorsement pursuant to Rule 41.06
To: Murat Kaya
You will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a)for an order that requires you to do an act or thing – you neglect or refuse to do the act or thing within the time specified in the order; or

(b)for an order that requires you not to do an act or thing – you disobey the order.

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


REASONS FOR JUDGMENT

ANASTASSIOU J:

  1. The applicant applies for an interim control order pursuant to section 104.4 of the Criminal CodeAct 1995 (Cth). The applicant is a member of the Australian Federal Police (AFP) holding the rank of Acting Assistant Commissioner. The terms of the interim control order the applicant seeks impose numerous restrictions upon the respondent’s personal freedom in a variety of ways, including the freedom to travel both within and outside Australia and the freedom to access various means of communication. The respondent is currently incarcerated but is due to be released imminently.

  2. The respondent opposes the making of any control order on the grounds that the Court does not have power in the circumstances to make an order. Alternatively, he submits that several of the proposed controls are not reasonably necessary, and reasonably appropriate and adapted.

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AGLC
Booth v Kaya [2020] FCA 25
Case
[2020] FCA 25
Decision Date

CaseChat Overview and Summary

In Booth v Kaya, the respondent, Murat Kaya, opposed an application for interim control orders under section 104.4 of the Criminal Code Act 1995 (Cth). The application was made by the Attorney-General of the Commonwealth of Australia in light of the respondent’s conviction and imprisonment for preparation for incursion into a foreign country for the purpose of engaging in hostile activities. The primary legal issues before the court were whether the respondent was convicted of an offence “relating to terrorism” and whether certain proposed controls were reasonably necessary and reasonably appropriate and adapted.

The court found that the respondent’s offence was indeed “relating to terrorism” as it involved preparation for incursion into a foreign country for the purpose of engaging in hostile activities with the intent to overthrow the government of the Southern Philippines by force or violence. The court noted the detailed narrative provided in the sentencing remarks of Justice Croucher in R v Cerantonio & Ors, which outlined the respondent’s agreement with his co-offenders to engage in conduct preparatory to entering the Philippines to encourage others in overthrowing the government by force or violence. The court held that the respondent’s actions constituted support for or facilitation of engagement in a hostile activity in a foreign country, satisfying the criteria for a control order. Regarding the necessity and appropriateness of the proposed controls, the court determined that several of the controls were reasonably necessary and reasonably appropriate and adapted to the circumstances, thereby granting the application in part.

The final orders included the making of an interim control order pursuant to section 104.4 of the Criminal Code Act 1995 (Cth) with specific terms set out in the Schedule, and the listing of a confirmation hearing for the interim control order at 10:15 am on 3 June 2020. The respondent was also informed of the potential penalties for non-compliance with the orders, including imprisonment, sequestration of property, or punishment for contempt.

Orders

Orders of the court

Interim control order

1. The Court makes an interim control order pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule.

Confirmation hearing

2. The confirmation hearing of the interim control order is listed at 10:15 am on 3 June 2020.

Endorsement pursuant to Rule 41.06

To: Murat Kaya

You will be liable to imprisonment, sequestration of property or punishment for contempt if:

(a) for an order that requires you to do an act or thing – you neglect or refuse to do the act or thing within the time specified in the order; or

(b) for an order that requires you not to do an act or thing – you disobey the order.

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

Background

Background to the litigation

The respondent opposes the making of any control order on the grounds that the Court does not have power in the circumstances to make an order. Alternatively, he submits that several of the proposed controls are not reasonably necessary, and reasonably appropriate and adapted. background In February 2019 the respondent pleaded guilty to one count of preparation for incursion into a foreign country for the purpose of engaging in hostile activities, contrary to sections 11.2A and 119.4(1) of the Criminal Code. The respondent committed this offence jointly with five others. Each of the respondent’s co-offenders pleaded guilty. The respondent and his co-offenders were sentenced by Justice Croucher in the Supreme Court of Victoria over a number of days on 22 and 26 February and 3 May 2019. On 22 February 2019, Justice Croucher sentenced the respondent to three years and eight months’ imprisonment, with a non-parole period of two years and nine months. On 2 September 2019 the Attorney-General provided notice that the respondent’s application for parole had been refused. The respondent’s sentence expires tomorrow, 23 January 2020. The sentencing remarks of Croucher J provide a detailed narrative of the events and conduct of the respondent and his co-offenders: R v Cerantonio & Ors [2019] VSC 284. In summary, the Crown’s case was that between 22 October 2015 and 10 May 2016, the respondent and his co-offenders joined in an agreement to engage in conduct in Australia, and did engage in such conduct, preparatory to one or more of them entering the Philippines with intent to encourage or join with others there in conduct aimed at overthrowing the government of the Southern Philippines by force or violence. The Crown alleged that the motivation for the agreement between the respondent and his co-offenders was to enable the Southern Philippines ultimately to be governed by Islamic law, otherwise known as “Sharia law”. The hostile activity that the respondent and his co-offenders intended was that one of them, Mr Cerantonio, would enter the Philippines to encourage persons of the Islamic faith to carry out actions directed at achieving the overthrow by force or violence of the government of the Southern Philippines. By 22 October 2015, neither the respondent or any of his co-offenders were able to gain entry to a foreign country or to assist Mr Cerantonio to do so. At different times during 2015 and 2016, a number of the co-offenders, including the respondent, had sought to leave Australia but were refused departure by the authorities. Eventually, all six of the co-offenders had their Australian passports cancelled. In that context, they agreed to acquire a boat and other necessary equipment to leave Australia in a covert manner to facilitate ultimate entry to the Philippines. An element of their agreement was that only Mr Cerantonio was to be involved in actually encouraging others to attempt to overthrow the government of the Southern Philippines by force or violence. There was no formed plan by Mr Cerantonio as to how the encouragement of others in the Philippines was to occur. The means by which he was to encourage others, and who those others might be, were unknown.

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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