Booth v Naizmand
[2020] FCA 691
•20 May 2020
FEDERAL COURT OF AUSTRALIA
Booth v Naizmand (No 2) FCA 691
File number: NSD 169 of 2020 Judge: BROMWICH J Date of judgment: 20 May 2020 Catchwords: CRIMINAL LAW – control orders – confirmation of interim control orders pursuant to s 104.14(7)(b) of the Criminal Code (Cth) – orders consented to Legislation: Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth), ss 104.4, 104.4(1)(c)(iv), 104.12, 104.12A, 104.14, 104.14(7)(b), 104.14(1A)
Federal Court of Australia Act 1976 (Cth) 37AJ
Cases cited: Booth v Naizmand [2020] FCA 244
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Date of hearing: 20 May 2020 Registry: New South Wales Division: General Division National Practice Area: Federal Crime and Related Proceedings Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: Mr A Berger Solicitor for the Applicant: Australian Government Solicitor Solicitor for the Respondent: Mr M Chahine of One Group Legal ORDERS
NSD 169 of 2020 BETWEEN: SANDRA BOOTH
Applicant
AND: AHMAD SAIYER NAIZMAND
Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
20 MAY 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 on 27 February 2020 be confirmed and varied in the terms set out in the Schedule to these Orders.
Non-publication order
2.There is to be no publication of the form of these orders, or any information filed in these proceedings, that might identify the person listed in Control 11(c)(xii), including:
a. his name and date of birth
b.the information included in paragraphs 174 to 176 (including the heading above paragraph 174) of the Exhibit SB-03 to the Affidavit of Sandra Booth sworn on 20 February 2020 and
c. the affidavit of Ms Jessica Parker, affirmed on 19 May 2020.
3.Order 2 is made on the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976, namely that it is necessary to prevent prejudice to the proper administration of justice.
4.Order 2 operates until 30 April 2021, unless the Court otherwise orders prior to then.
5.Order 2 does not prevent disclosure of information to and between the following people for the purposes of these proceedings:
a. the presiding judge and necessary staff of this Court;
b.officers and employees of agencies that are members of the Joint Counter Terrorism Team, and legal representatives of those agencies;
c. the Respondent and his legal representatives;
d. Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).
SCHEDULE
1.This Confirmed Control Order relates to the Respondent, Ahmad Saiyer Naizmand (Mr Naizmand).
2.The Court is satisfied on the balance of probabilities that Mr Naizmand has been convicted in Australia of an offence relating to terrorism (s 104(1)(c)(iv) of the Criminal Code).
3.The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on Mr Naizmand 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);
b.preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); and
c.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).
4.The obligations, prohibitions and restrictions to be imposed on Mr Naizmand by this Confirmed Control Order are those set out in Annexure A to this Schedule.
5.The Confirmed Control Order is to be in force until and including 27 February 2021.
6.The Respondent’s lawyer may attend the Australian Federal Police Sydney office at 110 Goulburn Street, Sydney NSW between 9:00am and 4:00pm, Monday to Friday in order to obtain a copy of this Confirmed Control Order.
Annexure A – terms of the confirmed control order
Control 1
1.1. You are required to remain at premises:
a.nominated by you within 6 hours from the time that this Confirmed Control Order comes into force; and
b.approved in writing by the AFP Superintendent
(the specified premises),
between the hours of 10:00 pm and 5:00 am (the curfew period) each day from the day on which this Confirmed Control Order comes into force 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 a police officer.
Control 2
2.1. You are required to report to a police officer every Monday between 7:00 am and 7:00 pm (the reporting period), at Auburn Police station on the corner of Queen and Susan Streets, Auburn, NSW.
Control 3
3.1. You are prohibited from being at any of the following areas:
a.within the exclusion zone at Sydney Airport, as identified by yellow shading in Annexure 1;
b.within the exclusion zone at Circular Quay, as identified by yellow shading in Annexure 2;
c.within the exclusion zone at White Bay, as identified in Annexure 3;
d.within 1 km of any Australian airport (besides Sydney Airport, which is addressed in Control 3.1.a) which has an international point of departure, or from which a person can board or charter a flight for an international destination;
e.within 1 km of any Australian port (besides Circular Quay and White Bay, which are addressed in Controls 3.1.a and 3.1.c) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination;
f.inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there;
g.at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or associating; and
h.any place in Australia outside the state of New South Wales.
Control 4
4.1. You are prohibited from leaving Australia.
Control 5
5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, which relate to any of the following:
a.explosives, explosive devices, initiation systems or firing devices;
b.firearms, ammunition or knives;
c.anti-surveillance or counter surveillance,
unless that material is:
d.published by a ‘constituent body’ of the Australian Press Council;
e.broadcast on Australian free to air television;
f.broadcast on Australian pay television;
g.shown in a commercial movie cinema;
h.broadcast on one of the following streaming services: Netflix; STAN; ABC iView; or SBS on demand; or
i.contained in material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 6
6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing or storing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess or store documents (including documents in electronic form) or electronic media, depicting or describing any:
a.execution;
b.beheading;
c.suicide attack;
d.bombing;
e.terrorist attack;
f.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth); or
g.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of Criminal Code 1995 (Cth),
h.anti-surveillance or counter-surveillance techniques;
unless that material is:
i.published by a ‘constituent body’ of the Australian Press Council;
j.broadcast on Australian free to air television;
k.broadcast on Australian pay television;
l.shown in a commercial movie cinema;
m.broadcast on one of the following streaming services: Netflix, STAN, ABC iView, SBS on demand; or
n.contained in material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 7
7.1. You are prohibited from the following specified activities (including in respect of your work or occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to:
a.explosives, explosive devices, initiation systems or firing devices;
b.firearms, ammunition or knives;
c.anti-surveillance or counter surveillance;
d.execution;
e.beheading;
f.suicide attack;
g.bombing;
h.terrorist attack;
i.propaganda and promotional material for a ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth);
j.activities of, or associated with, any ‘terrorist organisation’ within the meaning of s 102.1(1) of the Criminal Code (Cth);
k.material that is served on you or your legal representative by or on behalf of the applicant in Federal Court proceeding Booth v Naizmand (NSD 169 of 2020), including any appeal from that proceeding.
Control 8
8.1. You are prohibited from renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonnes, unless you are required to drive said vehicle for the purpose of undertaking paid employment.
Control 9
9.1. You are prohibited from undertaking paid employment without first notifying the AFP Superintendent (by telephone or in writing) of the business name of your employer and your intended position.
Control 10
10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely:
a.firearms, firearm part of or ammunition within the meaning of s. 4 of the Firearms Act 1996 (NSW);
b.a ‘prohibited weapon’ within the meaning of the Weapons Prohibition Act 1998 (NSW) legislation;
c.any quantity of any chemical which is not consistent with reasonable domestic use;
d.an article or device, not being a firearm, capable of discharging by any means:
i.any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or
ii.any substance capable of causing bodily harm;
e.a detonator;
f.a fuse capable of use with an explosive or a detonator;
g.a knife, in a public place, without reasonable excuse;
h.anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
Control 11
11.1. You are prohibited from communicating or associating with:
a.any person incarcerated in any correctional facility; and
b.any person you know, or reasonably believe, to be located in Turkey, Iraq or Syria;
c.any of the following specified individuals:
i.Milad Al-Ahmadzai (DOB: 3 April 1990)
ii.Jibryl Almaouie (DOB: 9 October 1993)
iii.Mohamed Rashad Almaouie (DOB: 30 October 1995)
iv.Kawa Alou (DOB: 19 March 1993)
v.Raban Alou (DOB: 3 August 1997)
vi.Hamdi Alqudsi (DOB: 21 August 1974)
vii.Ali Al-Talebi (DOB: 9 September 1989)
viii.Masood Atai (DOB: 3 February 1991)
ix.Milad Atai (DOB: 3 January 1996)
x.Omarjan Azari (DOB: 7 May 1992)
xi.Samimjan Azari (DOB: 2 October 1998)
xii.[redacted]
xiii.Mehmet Biber (DOB: 15 August 1992)
xiv.Mustafa Dirani (DOB: 5 August 1993)
xv.Wassim Fayad (DOB: 15 November 1967)
xvi.Ibrahim Ghazzawy (DOB: 13 October 1995)
xvii.[deleted]
xviii.Tamim Khaja (DOB: 8 September 1997)
xix.Sulayman Khalid (DOB: 11 November 1994)
xx.Shahin Norozian (DOB: 16 September 1987)
xxi.Maywand Osman (DOB: 10 December 1993)
xxii.Ahmad Rahmany (DOB: 13 March 1990)
xxiii.Jalal Suleman (DOB: 24 October 1996)
xxiv.Abdul-Rahman Tayba (DOB: 21 May 1996)
Control 12
12.1. You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions:
a.before using the permitted mobile phone, you must present it to the AFP Superintendent (or a police officer specified in writing by the AFP Superintendent) for inspection;
b.before using the permitted mobile phone, you must advise the AFP Superintendent, in writing, of the following information:
i.the International Mobile Equipment Identity number for the permitted mobile phone;
ii.the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone;
iii.the telecommunication service provider which you will use with the permitted mobile phone; and
iv.the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected.
c.once you have advised the AFP Superintendent of the information required by paragraph 12.1.b above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone; and
d.if you change the password for the permitted mobile phone, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
12.2. If the permitted mobile phone is one that the AFP has provided to you, controls 12.1(a) and (b)(i)-(iii) do not apply.
12.3. You are prohibited from causing or permitting another person to use or access the permitted mobile phone, unless it is being used in an emergency, provided you contact the AFP Superintendent as soon as possible after accessing or using the permitted mobile phone during the emergency and provide:
a.the name of the person who used the permitted mobile phone;
b.the date, time and phone number called by that person; and
c.an explanation of the nature of the emergency which required you to cause or permit another person to use or access the permitted mobile phone.
12.4. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.
Control 13
13.1. You are prohibited from accessing or using any fixed or landline telephone service other than one service that has been approved in writing by the AFP Superintendent for you to access or use.
13.2. To seek approval, you must:
a.submit a written request to the AFP Superintendent which nominates the fixed or landline telephone service; and
b.provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone service.
13.3. You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf.
Control 14
14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any public telephone except in the case of an emergency, provided that you contact the AFP Superintendent as soon as possible after accessing or using such a public telephone and:
a.provide sufficient detail to the AFP Superintendent to identify the public telephone that you accessed or used, the date, time and phone number called; and
b.you explain the nature of the emergency which required you to access or use, or cause another person to access or use on your behalf, that public telephone.
Control 15
15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service.
Control 16
16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any of the following websites, applications or computer programs (collectively, platforms), as the case may be:
a. KIK
b. Signal Private Messenger
c. Snapchat
d. Telegram
e. WhatsApp
Control 17
17.1. You are prohibited from accessing or using any internet service other than a service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted internet service).
17.2. To seek approval:
a.you must submit a written request to the AFP Superintendent which:
i.nominates the internet service provider account; and
ii. nominates the devices you will connect to the internet service (including but not limited to computers and televisions);
b.provide any other information requested by, or on behalf of, the AFP Superintendent, in relation to, or for the purpose of identifying, the nominated account and devices.
17.3. You are prohibited from causing any other person to access or use on your behalf any other internet service.
Control 18
18.1. You are prohibited from accessing or using any electronic mail (email) account other than an account that has been approved in writing by the AFP Superintendent for you to access or use (the permitted email account).
18.2. To seek approval:
a.you must submit a written request to the AFP Superintendent which nominates the email account; and
b.provide any other information requested by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using.
18.3. You are prohibited from causing or permitting another person to use or access the permitted email account.
18.4. You are prohibited from causing any other person to access or use on your behalf any email account.
Control 19
19.1. You are prohibited from accessing or using any computer other than a computer that has been approved in writing by the AFP Superintendent for you to access or use (the permitted computer) and your use of the permitted computer is subject to the following conditions:
a.before using the permitted computer, you must provide the password for the permitted computer to the AFP Superintendent; and
b.if you change the password for the permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent’s direction, if you are requested to do so by the AFP Superintendent or the police officer.
19.2. To request approval under Control 19.1 you must:
a.submit a written request to the AFP Superintendent which nominates the computer; and
b.provide any information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of identifying and accessing, the nominated computer.
Control 20
20.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab.
20.2. However, Control 20 does not prohibit you from accessing or using a computer with tablet device functionalities that is approved for use as the ‘permitted computer’ pursuant to Control 19.
Exemption
21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Control 1.1, Control 2.1, Control 3.1.h and Control 11.1.b.
21.2. To request an exemption, you must:
a.submit a written request to the AFP Superintendent which:
(i)identifies the Control in respect of which you seek an exemption;
(ii)explains the extent to which you seek to be exempted from the Control; and
(iii)explains your reason(s) for seeking the exemption; and
b.provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption.
21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing.
21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect.
21.5. A request for an exemption must be made before the material time and date.
21.6. If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused.
Interpretation
22.1. In this Confirmed Control Order:
a.Material time and date means:
i. in relation to a request for an exemption to the requirement in Control 1.1 ¾ the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods);
ii. in relation to a request for an exemption to the requirement in Control 2.1 ¾ before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods);
iii.in relation to a request for an exemption to the requirement in Control 3.1.h ¾ the time and date at which you wish to depart New South Wales; and
iv.in relation to a request for an exemption to the requirement in Control 11.1.b ¾ the time and date at which you wish to communicate with a person located in Turkey, Iraq or Syria.
b.AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism portfolio.
c.Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device.
d.Police officer means a ‘member’ or ‘special member’ of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a ‘police officer’ within the meaning of the Police Act 1990 (NSW).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
On 27 February 2020, I made an interim control order (ICO) against the respondent under s 104.4 of the Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth), giving ex tempore reasons that were subsequently published and later republished with certain redactions: Booth v Naizmand [2020] FCA 244. The control order regime is described in those reasons. The orders made that day were partially suppressed to protect the identity of an individual named in them. The applicant has elected to seek to confirm the ICO. A hearing for that purpose took place today, 20 May 2020.
There has been discourse between the parties and certain variations to the controls in the ICO have been agreed upon. Those variations in the greater part involve a limited relaxation of the controls previously imposed by the ICO. With those variations, the respondent does not contest confirmation of the ICO.
Section 104.14 of the Criminal Code governs the confirmation of an ICO. That section only applies if, per s 104.14(1A):
(a) an interim control order is made in relation to a person; and
(b) an election is made under section 104.12A to confirm the order; and
(c)the issuing court is satisfied on the balance of probabilities that section 104.12 and subsection 104.12A(2) have been complied with in relation to the order.
I am satisfied by the affidavit evidence before me that the requirements of s 104.12 of the Criminal Code have been met, which requires the ICO to be personally served on the respondent by a member of the Australian Federal Police (AFP), who has also provided an explanation as to the effect of the ICO and related information as required by s 104.12(1)(b). I am also satisfied by the affidavit evidence before me that the applicant has elected to confirm the ICO and given written notification to this Court of that election, and that the same member of the AFP has personally served upon the respondent a copy of that election notification and related documents in accordance with s 104.12A(2)(ii) and (iii).
In Thomas v Mowbray [2007] HCA 33; 233 CLR 307, Hayne J said at [480]:
In the end, it is s 104.4(1) which states the only criteria that an issuing court is to apply in deciding whether to grant an interim control order or confirm such an order. Two conditions must be met. First, the court must be satisfied on the balance of probabilities that either (i) “making the order would substantially assist in preventing a terrorist act” or (ii) “the person has provided training to, or received training from, a listed terrorist organisation” (s 104.4(1)(c)). The second condition is that “the court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act” (s 104.4(1)(d)).
As I was at the time of making the ICO, I am satisfied that both of the prerequisite conditions for the exercise of the power to confirm the ICO identified in the quote above have been met. Specifically, as recorded in my prior reasons at [8], I am satisfied that the respondent has been convicted in Australia of an offence relating to terrorism, meeting the criterion in s 104.4(1)(c)(iv). I am also satisfied that each of the prohibitions and restrictions imposed upon the respondent by the ICO and as now varied by agreement, meet the requirements of s 104.4(1)(d) because they are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act, or preventing the provision of support for the facilitation of a terrorist act or preventing the provision of support for the facilitation of the engagement in a hostile activity in a foreign country: see my prior reasons at [9]-[13].
I am therefore empowered to confirm the ICO with variations agreed upon that relevantly remove certain of the prior controls and imposing the remaining controls that have been agreed to between the parties as provided for by s 104.14(7)(b). I note in that regard although the respondent was entitled to produce evidence and make submissions at the confirmation hearing in accordance with s 104.14(1), he has not elected to do so.
In reaching that conclusion I am required to consider the original ICO request and the evidence and submissions made at the confirmation hearing, including taking judicial notice of the fact that the original request was made in particular terms, and note that I may only take action on evidence adduced and submissions made at the confirmation hearing, which is what I have done: see s 104.14(3) and (3A).
It is important to observe for completeness that a confirmation hearing, unlike an ICO hearing, is not interlocutory.
The maximum duration for which a confirmed control order may be made is 12 months from the day upon which the ICO is made which means that the confirmed control order will expire on 27 February 2021.
I will therefore make the orders largely in accordance with the draft orders that have been submitted to the Court prior to the hearing today. The only change of note is that the further suppression order that he is sought cannot be made until further order but must be made for a specified period and for no longer than is reasonably necessary to achieve the purpose for which it is made: see s 37AJ of the Federal Court of Australia Act 1976 (Cth). I have determined that the appropriate period should expire after the confirmed control order expires as that expiry may have a bearing on any further order that is sought. Of course, the applicant has the option of revisiting this at any time prior to that expiry. The suppression order will therefore be until 30 April 2021.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 20 May 2020
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