Booth v Thorne (No 2) - [2020] FCA 1196

Federal Court of Australia
Booth v Thorne (No 2) [2020] FCA 1196

File number: VID 126 of 2020

Judgment of: ANASTASSIOU J

Date of judgment: 17 August 2020

Date of publication of reasons: 19 August 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 (No 2) [2020] FCA 1119

Booth v Thorne [2020] FCA 445

R v Cerantonio & Ors [2019] VSC 284

Division: General Division

Registry: Western Australia

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 7

Date of hearing: 17 August 2020

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

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr S. Moglia

Solicitor for the Respondent: Doogue + George

ORDERS

VID 126 of 2020

BETWEEN:
SANDRA BOOTH

Applicant

AND:
SHAYDEN JAMIL THORNE

Respondent

order made by:

ANASTASSIOU J

DATE OF ORDER:

17 AUGUST 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 6 March 2020 and last varied on 24 June 2020 is confirmed with further variations as set out in red in Annexure A to these Orders.
2.The confirmed control order relates to the respondent, Shayden Jamil Thorne.
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, for the purposes of s 104.4(1)(c)(vii) of the Criminal Code, the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.
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 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.
6.The confirmed control order is in force until and including 5 March 2021.
7.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
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

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 Thorne (No 2)

Details

AGLC: Booth v Thorne (No 2) [2020] FCA 1196
Case: [2020] FCA 1196
Decision Date: 17 August 2020

CaseChat Overview and Summary

Booth v Thorne (No 2) is a matter before the Federal Court of Australia concerning an application for the confirmation of an interim control order. The respondent, Shayden Jamil Thorne, is subject to the interim control order which was made on 6 March 2020 and last varied on 24 June 2020. The applicant, presumably the Australian Federal Police (AFP), seeks to confirm the interim control order with further variations agreed upon by the parties. The primary legal issues for the court to determine were whether the interim control order should be confirmed and what the terms of the confirmed control order should be. Specifically, the court needed to decide if the respondent had been convicted of an offence relating to terrorism, if he had provided support for or facilitated hostile activities in a foreign country, and whether the obligations, prohibitions and restrictions proposed in the confirmed control order were reasonably necessary and appropriate.

The court confirmed the interim control order with variations as set out in Annexure A to the orders. The court found that the respondent had 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. Additionally, the court was satisfied on the balance of probabilities that the respondent had provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country. The court also found that each of the obligations, prohibitions and restrictions to be imposed on the respondent by the confirmed control order were reasonably necessary and appropriate. The confirmed control order is in force until and including 5 March 2021.

The final orders confirm the interim control order with variations, declare the respondent's convictions and activities, and state the necessity and appropriateness of the control order's terms. The respondent's lawyer may obtain a copy of these orders from the AFP Melbourne office between 9 am to 4 pm, Monday to Friday.

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 6 March 2020 and last varied on 24 June 2020 is confirmed with further variations as set out in red in Annexure A to these Orders.

2. The confirmed control order relates to the respondent, Shayden Jamil Thorne.

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, for the purposes of s 104.4(1)(c)(vii) of the Criminal Code, the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country.

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 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.

6. The confirmed control order is in force until and including 5 March 2021.

7. 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 126 of 2020
Judgment of:	ANASTASSIOU J
Date of judgment:	17 August 2020
Date of publication of reasons:	19 August 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 (No 2) [2020] FCA 1119 Booth v Thorne [2020] FCA 445 R v Cerantonio & Ors [2019] VSC 284
Division:	General Division
Registry:	Western Australia
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	7
Date of hearing:	17 August 2020
Counsel for the Applicant:	Mr R. Maidment QC with Ms C. Fitzgerald
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr S. Moglia
Solicitor for the Respondent:	Doogue + George

order made by:	ANASTASSIOU J
DATE OF ORDER:	17 AUGUST 2020