Booth v Khazaal - [2020] FCA 1241

FEDERAL COURT OF AUSTRALIA
Booth v Khazaal [2020] FCA 1241

File number: NSD 859 of 2020

Judgment of: WIGNEY J

Date of judgment: 26 August 2020

Catchwords: CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – where person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act – whether proposed orders reasonably necessary – whether proposed orders reasonably appropriate and adapted – application granted

Legislation:
Criminal Code Act 1995 (Cth) ss 100.1, 101.5(1), 102.1(1), 104.1, 104.2(3), 104.3, 104.4, 104.4(1), 104.4(1)(a), 104.4(1)(b), 104.4(1)(c)(iv), 104.4(1)(d)(i), 104.4.(1)(d)(ii), 104.4(1)(d)(iii), 104.4(2), 104.4(3)

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AG(1)(a), 37AG(1)(b), 37AG(1)(c)

Cases cited:
Booth v Kaya [2020] FCA 25

McCartney v EB (2019) 263 FCR 170

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Thomas v Mowbray (2007) 233 CLR 307

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 73

Date of hearing: 18 August 2020

Counsel for the Applicant: Mr D G Staehli SC with Mr T Glover

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr C Parkin

Solicitor for the Respondent: Lawyers Corp Pty Ltd

ORDERS

NSD 859 of 2020

BETWEEN:
SANDRA BOOTH

Applicant

AND:
BELAL SAADALLAY KHAZAAL

Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

26 AUGUST 2020

THE COURT ORDERS THAT:
Interim control order
1.An interim control order be made pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders.

Non-publication order
2.The publication or disclosure of the following information be prohibited:
2.1 The contents of ‘The Provisions on the Rules of Jihad’, as found in:
2.1.1Paragraphs 176-197 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 116 to 125;
2.1.2Annexure 97 of the exhibit to the Statement of facts relating to why the order should be made at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 2622 to 2728, except page 2628 (the ‘Introduction’);
2.1.3Paragraph 130 of the Affidavit of Sandra Booth, at pages 26-27;

2.2 The name of the person referred to in the following parts of the evidence, as well as the facts relating to that person’s offending, the name of the victim of his offending, the name of the victim’s father, and any information that would tend to disclose the identity of any of those persons:
2.2.1Paragraphs 225, 350-352 and the heading preceding paragraph 350 and footnotes 351-353 and 368 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 132, 153 and 155;
2.2.2Annexures 105, 191 and 193 of the exhibit of the Statement of facts of relating…

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 Khazaal

Details

AGLC: Booth v Khazaal [2020] FCA 1241
Case: [2020] FCA 1241
Decision Date: 26 August 2020

CaseChat Overview and Summary

The case of Booth v Khazaal involved an application by Commander Sandra Booth, acting on behalf of the Australian Federal Police, for interim control orders under section 104.4 of the Criminal Code Act 1995 (Cth) against Belal Khazaal. Khazaal had been convicted of an offence related to terrorism. The primary legal issues before the court were whether the proposed control orders were reasonably necessary and appropriately tailored to the objectives specified in section 104.4(1)(d) of the Criminal Code Act 1995 (Cth), which includes protecting the public from terrorist acts, preventing the provision of support for or the facilitation of a terrorist act, and preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country.

The court found that the proposed control orders were reasonably necessary and appropriately tailored to the specified objectives. It held that the definition of "AFP Superintendent" in the control order was adequate, as Khazaal could seek clarification if needed. The court also noted that providing a specific contact number for the control order was unnecessary and potentially problematic, as changes to the number would require a variation application. With minor amendments, the court concluded that the proposed control orders were reasonably necessary and appropriately tailored to the specified objectives.

Additionally, the court granted non-publication and suppression orders pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth) for certain paragraphs of the affidavit and annexures, as well as for specific information in the interim control order. These orders were made to prevent prejudice to the proper administration of justice and to protect the safety of individuals, particularly given the sensitive nature of the information, including excerpts from a book published by Khazaal and details of sexual offences against minors. Both parties agreed on the necessity of these orders.

The court issued an interim control order containing the proposed controls, subject to minor amendments. Non-publication and suppression orders were also made for specific information to protect the safety of individuals and prevent prejudice to the administration of justice. The interim control order is effective until it is confirmed, voided, or revoked at a hearing on 30 November 2020. The matter is also listed for a case management hearing on 2 September 2020. Khazaal is warned of the consequences of non-compliance with the control order.

Orders

Orders of the court

Interim control order

1. An interim control order be made pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) in the terms set out in the Schedule to these orders.

Non-publication order

2. The publication or disclosure of the following information be prohibited:

2.1 The contents of ‘The Provisions on the Rules of Jihad’, as found in:

2.1.1 Paragraphs 176-197 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 116 to 125;

2.1.2 Annexure 97 of the exhibit to the Statement of facts relating to why the order should be made at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 2622 to 2728, except page 2628 (the ‘Introduction’);

2.1.3 Paragraph 130 of the Affidavit of Sandra Booth, at pages 26-27;

2.2 The name of the person referred to in the following parts of the evidence, as well as the facts relating to that person’s offending, the name of the victim of his offending, the name of the victim’s father, and any information that would tend to disclose the identity of any of those persons:

2.2.1 Paragraphs 225, 350-352 and the heading preceding paragraph 350 and footnotes 351-353 and 368 of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 132, 153 and 155;

2.2.2 Annexures 105, 191 and 193 of the exhibit of the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 3042 to 3047, 3515 to 3529 and 3544 to 3551;

2.2.3 The names of the annexures 105, 191 and 193, as they appear in the List of Annexures to the Statement of facts of relating to why the order should be made, at Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 169 and 174;

2.2.4 Paragraph 11.1(f)(xiii) of the draft control order at Annexure SB-01 of the 5 August 2020 affidavit of Sandra Booth, at page 55; and

2.2.5 Paragraphs 229-233 of the Affidavit of Sandra Booth and the heading accompanying this section of the affidavit, at page 45.

2.3 The following information in the interim control order:

2.3.1 The address at which the Respondent is required to reside as referred to in Control 2.1;

2.3.2 The Respondent’s telephone number as referred to in Control 13.1;

2.3.3 The names of the persons referred to in Control 11.1(e)(ii).

3. Order 2 is made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and on the grounds set out in subss 37AG(1)(a), (b) and (c) of that Act.

4. Order 2 operates until further order.

5. Order 2 does not prevent disclosure of any information in the judgment of this Court, or the disclosure of information to and between the following people for the purposes of these proceedings or the monitoring or enforcement of compliance with the interim control order:

5.1 The presiding judge and necessary staff of this Court;

5.2 Officers and employees of agencies that are members of the Joint Counter Terrorism Team, and legal representatives of those agencies;

5.3 The Respondent and his legal representatives;

5.4 Officers and employees of any State, Territory or Commonwealth law enforcement, security or intelligence agency, including but not limited to NSWPF, ASIO and ACIC;

5.5 NSW Corrective Services;

5.6 Any witness briefed by either party in these proceedings.

Confirmation hearing

6. The day on which the Respondent may attend Court for the Court to either confirm (with or without variation) the interim control order, or declare the interim control order to be void, or revoke the interim control order, is 30 November 2020 at 10.15 am and the matter is listed for further hearing at that date and time.

Case management hearing

7. The matter is listed for a case management hearing on 2 September 2020 at 9.15 am.

Endorsement pursuant to Rule 41.06

To: Belal Khazaal

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.

Date: 26 August 2020

SCHEDULE

(1) This interim control order relates to the Respondent, Belal Khazaal.

(2) The Court is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code Act 1995 (Cth)).

(3) 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 order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of:

3.1 protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code Act 1995 (Cth));

3.2 preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code Act 1995 (Cth)); and

3.3 preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104.4(1)(d)(iii) of the Criminal Code Act 1995 (Cth)).

(4) The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Annexure A to this Schedule.

(5) A summary of the grounds on which the order is made is set out in Annexure B to this Schedule.

(6) This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody.

(7) If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made.

(8) The Respondent may attend the Federal Court of Australia which is located at the Law Courts Building, Level 17, 184 Phillip Street, Queens Square, Sydney, NSW 2000, on 30 November 2020 for the Court to either:

8.1 confirm (with or without variation) this Interim Control Order; or

8.2 declare this Interim Control Order to be void; or

8.3 revoke this Interim Control Order.

(9) The Respondent’s lawyer may attend the Australian Federal Police Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order.

ANNEXURE A

ANNEXURE B

ANNEXURE 1

ANNEXURE 2

ANNEXURE 3

ANNEXURE 4

ANNEXURE 5

ANNEXURE 6

ANNEXURE 7

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

Mr Khazaal’s concerns in that regard are more theoretical than real. Mr Khazaal could no doubt seek clarification and confirmation from any AFP member with whom he had dealings in respect of the control order so as to ensure that they fell within the definition of AFP Superintendent. It is difficult to imagine that an AFP member, in that context, would not be able to provide that clarification or confirmation if asked. Commander Booth also indicated that Mr Khazaal would be given a specific contact telephone number to call for the purpose of the control order. Mr Khazaal contended that the contact number should be included in the control order. That would, however, not only be unnecessary but also potentially problematic. What if, for example, the contact number had to change for some reason? It would then be necessary to apply for a variation of the order. In all the circumstances, the proposed definition of AFP Superintendent in control 21 is adequate.Conclusion in relation to the form of the order Subject to the very minor amendments referred to in these reasons, the controls most recently proposed by Commander Booth are all reasonably necessary and reasonably appropriate and adapted for the purpose specified in s 104.4(1)(d) of the Code. An interim control order containing those controls will be made.NON-PUBLICATION ORDERS Commander Booth also applied for non-publication and suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of certain paragraphs of her affidavit and certain paragraphs of annexures to her affidavit. Those paragraphs either reproduced extracts from the book published by Mr Khazaal or named a person who had committed sexual offences against a minor. The grounds upon which it was said those orders should be made was that they were necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person: subss 37AG(1)(a), (b) and (c) of the FCA Act. Commander Booth’s affidavit contained evidence relevant to those grounds. Mr Khazaal did not oppose the making of these orders. Mr Khazaal also sought non-publication and suppression orders in respect of the address at which he is required to reside as referred to in Control 2.1, his telephone number as referred to in Control 13.1, and the names of the persons who reside in certain countries but who Mr Khazaal is permitted to associate with as referred to in Control 11.1(e)(ii). The grounds upon which it was said that those orders should be made was that they were necessary to prevent prejudice to the proper administration of justice and to protect the safety of a person: subs 37AG(1)(c) of the FCA Act. Commander Booth did not oppose the making of these orders. It is unnecessary to provide detailed reasons in relation to the proposed non-publication and suppression orders. Save for one minor observation, it suffices to say that I am satisfied in all the circumstances that there are proper grounds under s 37AG for the making of those orders.

Ratio Decidendi

Legal Principle Established

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File number:	NSD 859 of 2020
Judgment of:	WIGNEY J
Date of judgment:	26 August 2020
Catchwords:	CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code Act 1995 (Cth) – where person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation or a terrorist act – whether proposed orders reasonably necessary – whether proposed orders reasonably appropriate and adapted – application granted
Legislation:	Criminal Code Act 1995 (Cth) ss 100.1, 101.5(1), 102.1(1), 104.1, 104.2(3), 104.3, 104.4, 104.4(1), 104.4(1)(a), 104.4(1)(b), 104.4(1)(c)(iv), 104.4(1)(d)(i), 104.4.(1)(d)(ii), 104.4(1)(d)(iii), 104.4(2), 104.4(3) Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG, 37AG(1)(a), 37AG(1)(b), 37AG(1)(c)
Cases cited:	Booth v Kaya [2020] FCA 25 McCartney v EB (2019) 263 FCR 170 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Thomas v Mowbray (2007) 233 CLR 307
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	73
Date of hearing:	18 August 2020
Counsel for the Applicant:	Mr D G Staehli SC with Mr T Glover
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr C Parkin
Solicitor for the Respondent:	Lawyers Corp Pty Ltd

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	26 AUGUST 2020