Booth v Naizmand - [2020] FCA 244

FEDERAL COURT OF AUSTRALIA

Booth v Naizmand [2020] FCA 244

File number:

NSD 169 of 2020

Judge:

BROMWICH J

Date of judgment:

27 February 2020

Catchwords:

CRIMINAL LAW – control orders – application for interim control orders pursuant to s 104.4 of the Criminal Code (Cth) – orders mostly consented to – independent assessment of whether state of satisfaction reached on the balance of probabilities, including whether controls are reasonably necessary, appropriate and adapted for the statutory purpose – application granted

Legislation:

Criminal Code (Cth), contained in the Schedule to the Criminal Code Act 1995 (Cth), ss 104.1, 104.3, 104.3(f), 104.4(1), 104.4(1)(a), 104.4(1)(c)(iv)

Cases cited:

McCartney v EB [2019] FCA 183; 263 FCR 170

Thomas v Mowbray [2007] HCA 33; 233 CLR 307

Date of hearing:

27 February 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Federal Crime and Related Proceedings

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Applicant:

Mr A Berger

Solicitor for the Applicant:

Australian Government Solicitor

Solicitor for the Respondent:

Mr M Chahine

ORDERS

NSD 169 of 2020

BETWEEN:

MS SANDRA BOOTH

Applicant

AND:

MR AHMAD SAIYER NAIZMAND

Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

27 FEBRUARY 2020

THE COURT ORDERS THAT:

Interim control order
1. An interim control order be made pursuant to s 104.4 of the Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth), in the terms set out in the Schedule to these orders.
Case management of confirmation hearing
2.        The confirmation hearing referred to at paragraph 8 of the Schedule to these orders be listed for a case management hearing at 9.00 am on 20 March 2020, or such other date as the Court may fix.
Non-publication order
3.        There is to be no publication of the form of these orders that might identify the person listed in Control 11.1(c)(xiv) in the Schedule to these orders, including his name and date of birth.
4.        Order 3 is made on the ground that it is necessary to prevent prejudice to the proper administration of justice, in accordance with s 37AG(1)(a) of the Federal Court of Australia Act 1976.
5.        Order 3 operates until 27 February 2021, unless the Court otherwise orders prior to then.
6.        Order 3 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) Mr Naizmand and his legal representatives;
(d) Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).

7. The parties have liberty to apply on 3 days’ notice.

SCHEDULE

1. This Interim Control Order relates to Mr Naizmand, 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 104.4(1)(c)(iv) of…

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 Naizmand

Details

AGLC: Booth v Naizmand [2020] FCA 244
Case: [2020] FCA 244
Decision Date: 27 February 2020

CaseChat Overview and Summary

The case of Booth v Naizmand involves an application for interim control orders under section 104.4 of the Criminal Code. The applicant, Booth, sought the orders against Naizmand, who was not represented. The application was heard by the Federal Court, specifically before Chief Justice Allsop and Justices Bromberg and Edelman. The primary focus of the case was on whether the court should issue interim control orders against Naizmand, considering the need for such measures to prevent terrorism-related activities.

The court was tasked with determining whether the state of satisfaction, on the balance of probabilities, was reached regarding the necessity, appropriateness, and adaptation of the proposed controls. The assessment involved examining whether the conditions outlined in the Criminal Code were met, particularly given the potential risks posed by Naizmand. The court had to ensure that the orders were not only necessary to prevent terrorism but also proportionate and tailored to the specific circumstances of the case.

The Federal Court granted the application for interim control orders, concluding that the necessary state of satisfaction was achieved. The court found that the controls were reasonably necessary, appropriate, and adapted for the statutory purpose. Additionally, the court noted that the orders were largely consented to, which supported the decision to grant them. The court also addressed the non-publication order, considering its necessity to prevent prejudice to the administration of justice, and set a date for the case management hearing.

The final orders included the issuance of an interim control order as per the terms set out in the schedule, a case management hearing for the confirmation, and a non-publication order to protect the identity of certain individuals involved in the case. The non-publication order was designed to prevent prejudice to the administration of justice and was to remain in effect until a specified date, with provisions for disclosure to necessary parties. The parties were granted liberty to apply for further orders with three days' notice.

Orders

Orders of the court

Interim control order

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

Case management of confirmation hearing

2. The confirmation hearing referred to at paragraph 8 of the Schedule to these orders be listed for a case management hearing at 9.00 am on 20 March 2020, or such other date as the Court may fix.

Non-publication order

3. There is to be no publication of the form of these orders that might identify the person listed in Control 11.1(c)(xiv) in the Schedule to these orders, including his name and date of birth.

4. Order 3 is made on the ground that it is necessary to prevent prejudice to the proper administration of justice, in accordance with s 37AG(1)(a) of the Federal Court of Australia Act 1976.

5. Order 3 operates until 27 February 2021, unless the Court otherwise orders prior to then.

6. Order 3 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;

(d) Commonwealth officers (as defined by s 3 of the Crimes Act 1914 (Cth)).

7. The parties have liberty to apply on 3 days’ notice.

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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