Booth v Kaya (No 2) - [2020] FCA 1119

FEDERAL COURT OF AUSTRALIA
Booth v Kaya (No 2) [2020] FCA 1119

File number: VID 1377 of 2019

Judge: ANASTASSiOu J

Date of judgment: 29 July 2020

Catchwords: CRIMINAL LAW – control orders – application for confirmation of interim control order – terms of confirmed control order agreed between the parties – interim control order confirmed

Legislation: Criminal Code Act 1995 (Cth)

Cases cited: Booth v Kaya [2020] FCA 25

Date of hearing: 29 July 2020

Registry: Victoria

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: Mr R. Maidment QC with Ms C. Fitzgerald

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr J. Anderson

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:

29 JULY 2020

THE COURT ORDERS THAT:
1.Pursuant to s 104.14(7)(b) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the interim control order made in relation to the respondent on 22 January 2020 is confirmed with variations as set out in red in the Annexure A to these Orders.
2.The confirmed control order relates to the respondent, Murat Kaya.
3.The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(iv) of the Criminal Code, 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 by virtue of s 11.2A of the Criminal Code.
4.The Court is satisfied on the balance of probabilities that 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.
5.The confirmed control order is in force until and including 21 January 2021.
6.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.

REASONS FOR JUDGMENT
(delivered ex tempore, revised from transcript)
ANASTASSIOU J:

Before the court is an application for the confirmation of an interim control order made in respect of the respondent pursuant to s 104.4 of the Criminal Code Act 1995 (Cth). I made the interim control order on 22 January 2020 and published reasons: Booth v Kaya [2020] FCA 25. The terms of the proposed confirmed control order have been agreed between the parties.
Before an interim control order may be confirmed, the court must be satisfied that the requirements of ss 104.12 and 104.12A of the Criminal Code have been…

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 Booth v Kaya (No 2)

Details

AGLC: Booth v Kaya (No 2) [2020] FCA 1119
Case: [2020] FCA 1119
Decision Date: 29 July 2020

CaseChat Overview and Summary

The case of Booth v Kaya (No 2) involved an application for the confirmation of an interim control order. The respondent, Murat Kaya, was subject to this interim order, which was made on 22 January 2020. The terms of the control order were agreed upon by the parties, and the court was required to confirm the interim control order with certain variations. The application was heard by the Federal Court of Australia, which had jurisdiction over the matter under the Criminal Code Act 1995.

The court was required to determine several legal issues, including whether the respondent had been convicted in Australia of an offence relating to terrorism, as required by the legislation. The court also had to consider whether the obligations, prohibitions, and restrictions to be imposed on the respondent by the control order were reasonably necessary and appropriate for the purposes of protecting the public from a terrorist act. The court had to be satisfied on the balance of probabilities of both these issues.

In its decision, the court confirmed the interim control order with the agreed variations. The court was satisfied on the balance of probabilities that the respondent had been convicted in Australia of an offence relating to terrorism, and that the obligations, prohibitions, and restrictions imposed by the control order were reasonably necessary and appropriate. The control order was in force until 21 January 2021, and the respondent’s lawyer was permitted to attend the AFP Melbourne office to obtain a copy of the orders.

The final orders of the court confirmed the interim control order with the agreed variations, and specified the offence for which the respondent had been convicted. The court also made orders relating to the duration of the control order, and the manner in which the respondent’s lawyer could obtain a copy of the orders.

Orders

Orders of the court

1. Pursuant to s 104.14(7)(b) of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), the interim control order made in relation to the respondent on 22 January 2020 is confirmed with variations as set out in red in the Annexure A to these Orders.

2. The confirmed control order relates to the respondent, Murat Kaya.

3. The Court is satisfied on the balance of probabilities that, for the purpose of s 104.4(1)(c)(iv) of the Criminal Code, 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 by virtue of s 11.2A of the Criminal Code.

4. The Court is satisfied on the balance of probabilities that 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.

5. The confirmed control order is in force until and including 21 January 2021.

6. 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.

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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File number:	VID 1377 of 2019
Judge:	ANASTASSiOu J
Date of judgment:	29 July 2020
Catchwords:	CRIMINAL LAW – control orders – application for confirmation of interim control order – terms of confirmed control order agreed between the parties – interim control order confirmed
Legislation:	Criminal Code Act 1995 (Cth)
Cases cited:	Booth v Kaya [2020] FCA 25
Date of hearing:	29 July 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Federal Crime and Related Proceedings
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr R. Maidment QC with Ms C. Fitzgerald
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr J. Anderson
Solicitor for the Respondent:	James Dowsley & Associates

JUDGE:	ANASTASSIou J
DATE OF ORDER:	29 JULY 2020