Booth v Khazaal (No 2) - [2020] FCA 1528

FEDERAL COURT OF AUSTRALIA
Booth v Khazaal (No 2) [2020] FCA 1528

File number: NSD 859 of 2020

Judgment of: WIGNEY J

Date of judgment: 7 October 2020

Catchwords: CRIMINAL LAW – control orders – application for confirmation of interim control order pursuant to s 104.14(7) of the Criminal Code Act 1995 (Cth) – whether interim control order should be confirmed – whether the relevant conditions have been satisfied – application granted

Legislation: Criminal Code Act 1995 (Cth) ss 100.1, 104.2(3)(aa), 104.3(d), 104.4, 104.4(1)(c), 104.4(1)(d), 104.5(1)(e), 104.12, 104.12(1)(b), 104.12A, 104.12A(1), 104.12A(2), 104.13, 104.14, 104.14(1A), 104.14(1A)(a), 104.14(1A)(b), 104.14(1A)(c), 104.14(1), 104.14(3), 104.14(3A), 104.14(3A)(b), 104.14(6), 104.14(7), 104.14(7)(a), 104.14(7)(b), 104.14(7)(c), 104.18, 104.19(3), 104.22, 104.23(4), 104.27

Cases cited: Booth v Khazaal [2020] FCA 1241

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 41

Date of hearing: 7 October 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 with Mr J Elks

Solicitor for the Respondent: Lawyers Corp Pty Ltd

ORDERS

NSD 859 of 2020

BETWEEN:
SANDRA BOOTH

Applicant

AND:
BELAL SAADALLAH KHAZAAL

Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

7 OCTOBER 2020

THE COURT ORDERS THAT:
1.The orders made on 26 August 2020 be varied to insert paragraph 2.1A, a paragraph inserted after paragraph 2.1, which reads as follows:
Annexure 98 of Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 2745 to 2854.

2.Pursuant to s 104.14(7)(c) 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 26 August 2020 is confirmed without variation.

THE COURT NOTES THAT:
3.The confirmed control order relates to the Respondent, Belal Saadallah Khazaal.
4.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)).
5.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:
(a)protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code Act 1995 (Cth));
(b)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
(c)preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code Act 1995 (Cth)).

6.The Confirmed Control Order is in force until and including 26 August 2021.
7.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 Confirmed Control Order.

Note: Entry of orders is dealt with…

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 (No 2)

Details

AGLC: Booth v Khazaal (No 2) [2020] FCA 1528
Case: [2020] FCA 1528
Decision Date: 7 October 2020

CaseChat Overview and Summary

The case of Booth v Khazaal (No 2) involved an application by the Commonwealth for the confirmation of an interim control order imposed on Belal Saadallah Khazaal. The matter was heard in the Federal Court of Australia, where the primary issue was whether the interim control order should be confirmed under section 104.14(7) of the Criminal Code Act 1995 (Cth). The application followed a conviction of Khazaal for a terrorism-related offence, and the order was sought to protect the public and prevent support for terrorist activities.

The legal issues the court needed to decide included whether the relevant conditions for confirming the interim control order were satisfied, as required by sections 104.4(1)(c) and (d) of the Criminal Code. These conditions include the necessity and appropriateness of the obligations, prohibitions, and restrictions imposed by the order for the purpose of protecting the public from terrorist acts, preventing support for terrorist acts, and preventing support for hostile activities in foreign countries. Given the absence of opposition from Khazaal, the court was also required to determine if confirming the interim control order without variation was the appropriate course.

The court found that the relevant conditions had been met and was satisfied that the interim control order was reasonably necessary and appropriate. The order was deemed necessary for protecting the public from terrorist acts and for preventing support for terrorist activities and hostile activities in foreign countries. Given the evidence and submissions, the court concluded that confirming the interim control order without variation was appropriate. Consequently, the court granted the application and confirmed the interim control order as per section 104.14(7)(c) of the Criminal Code. The confirmed control order was in effect until 26 August 2021.

Orders

Orders of the court

1. The orders made on 26 August 2020 be varied to insert paragraph 2.1A, a paragraph inserted after paragraph 2.1, which reads as follows:

Annexure 98 of Annexure SB-03 of the 5 August 2020 affidavit of Sandra Booth, at pages 2745 to 2854.

2. Pursuant to s 104.14(7)(c) 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 26 August 2020 is confirmed without variation.

THE COURT NOTES THAT:

3. The confirmed control order relates to the Respondent, Belal Saadallah Khazaal.

4. 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)).

5. 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:

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

(b) 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

(c) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code Act 1995 (Cth)).

6. The Confirmed Control Order is in force until and including 26 August 2021.

7. 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 Confirmed Control Order.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Court is, accordingly, satisfied “as mentioned in” s 104.4(1)(d) of the Code.CONCLUSION IN RELATION TO CONFIRMATION The Court is satisfied that the relevant conditions that must be satisfied before s 104.14 applies have been satisfied or complied with. The Court is also, on the basis of the evidence adduced and the submissions made in accordance with s 104.14(1) of the Code, satisfied “as mentioned in” ss 104.4(1)(c) and (d) of the Code. The Court accordingly can made an order pursuant to s 104.14(7)(c) of the Code confirming the ICO without variation. That is, in the circumstances, also the appropriate course, particularly in the absence of any opposition by Mr Khazaal. The ICO will accordingly be confirmed without variation, other than the minor variations to which reference was made earlier. Accordingly, the Court will make orders in accordance with the short minutes of order that have been provided to the Court, save that order 1 should read “pursuant to s 104.14(7)(c) of the Criminal Code” rather than “pursuant to s 104.14(7)(b)”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 859 of 2020
Judgment of:	WIGNEY J
Date of judgment:	7 October 2020
Catchwords:	CRIMINAL LAW – control orders – application for confirmation of interim control order pursuant to s 104.14(7) of the Criminal Code Act 1995 (Cth) – whether interim control order should be confirmed – whether the relevant conditions have been satisfied – application granted
Legislation:	Criminal Code Act 1995 (Cth) ss 100.1, 104.2(3)(aa), 104.3(d), 104.4, 104.4(1)(c), 104.4(1)(d), 104.5(1)(e), 104.12, 104.12(1)(b), 104.12A, 104.12A(1), 104.12A(2), 104.13, 104.14, 104.14(1A), 104.14(1A)(a), 104.14(1A)(b), 104.14(1A)(c), 104.14(1), 104.14(3), 104.14(3A), 104.14(3A)(b), 104.14(6), 104.14(7), 104.14(7)(a), 104.14(7)(b), 104.14(7)(c), 104.18, 104.19(3), 104.22, 104.23(4), 104.27
Cases cited:	Booth v Khazaal [2020] FCA 1241
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	41
Date of hearing:	7 October 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 with Mr J Elks
Solicitor for the Respondent:	Lawyers Corp Pty Ltd

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	7 OCTOBER 2020