Commissioner of the Australian Federal Police v Khazaal
[2021] FCA 781
•29 June 2021
FEDERAL COURT OF AUSTRALIA
Commissioner of the Australian Federal Police v Khazaal [2021] FCA 781
File number: NSD 550 of 2021 Judgment of: WIGNEY J Date of judgment: 29 June 2021 Catchwords: CRIMINAL LAW – application to vary interim control order pursuant to s 104.20 of the Criminal Code (schedule to Criminal Code Act 1995 (Cth)) – where respondent remains in custody for contravention of interim control order – whether obligations, restrictions or prohibitions imposed by interim control order should operate against respondent during incarceration – where respondent was given written notice of application pursuant to s 104.19(2)(a) of the Criminal Code – where circumstances found to be appropriate to suspend obligations, restrictions or prohibitions during period that respondent remains in custody – application granted Legislation: Criminal Code Act 1995 (Cth), ss 104.14(7)(b), 104.19, 104.19(1)(b), 104.19(2)(a), 104.19(3)(a), 104.20, 104.27 Division: General Division Registry: New South Wales Number of paragraphs: 13 National Practice Area: Federal Crime and Related Proceedings Date of hearing: 29 June 2021 Counsel for the Applicant: Mr T Glover Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: The respondent appeared in person ORDERS
NSD 550 of 2021 BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND: BELAL KHAZAAL
Respondent
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
29 JUNE 2021
THE COURT ORDERS THAT:
1.Pursuant to s 104.20(1)(b) of the Criminal Code, the schedule to the Criminal Code Act 1995 (Cth), the confirmed control order entered in relation to the respondent on 8 October 2020 be varied so as to include in Annexure A to those orders a paragraph in the following terms:
22 Variation of controls while in custody
22.1Controls 1-21 do not apply during any period in which you are held by or on behalf of an officer in a prison or remand centre of the Commonwealth, a State or a Territory.
22.2 Controls 1-21 resume their application at the conclusion of any period referred to in Control 22.1.
2.Each party bear its own costs of this application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
On 7 October 2020, the Court made orders under s 104.14(7)(b) of the Criminal Code (the schedule to the Criminal Code Act 1995 (Cth)), the effect of which was to confirm an interim control order which had been made in relation to the respondent, Mr Belal Khazaal.
The confirmed control order imposed a series of obligations, restrictions and prohibitions upon Mr Khazaal which were set out in Annexure A to the order. The control order remains in force until 26 August 2021.
On 30 April 2021, Mr Khazaal was arrested and charged with three counts of contravening a control order contrary to s 104.27 of the Code. The precise basis upon which it is alleged that Mr Khazaal contravened the control order is presently unclear, at least to the Court.
On 7 May 2021, Mr Khazaal applied for, but was refused, bail. Mr Khazaal remains in custody.
The applicant, the Commissioner of the Australian Federal Police, has applied for an order, the effect of which is to vary the confirmed control order by inserting a paragraph in
Annexure A to the control order in the following terms:
22 Variation of controls while in custody
22.1Controls 1-21 do not apply during any period in which you are held by or on behalf of an officer in a prison or remand centre of the Commonwealth, a State or a Territory.
22.2Controls 1-21 resume their application at the conclusion of any period referred to in Control 22.1.
Section 104.19 of the Code states relevantly:
104.19Application by the AFP Commissioner for a revocation or variation of a control order
(1)While a confirmed control order is in force, the Commissioner of the Australian Federal Police must cause an application to be made to an issuing court:
(a)to revoke the order, under section 104.20, if the Commissioner is satisfied that the grounds on which the order was confirmed have ceased to exist; and
(b)to vary the order, under that section, by removing one or more obligations, prohibitions or restrictions, if the Commissioner is satisfied that those obligations, prohibitions or restrictions should no longer be imposed on the person.
(2)The Commissioner must cause written notice of both the application and the grounds on which the revocation or variation is sought to be given to the following persons:
(a) the person in relation to whom the order is made;
(b) if:
(i)the person in relation to whom the order is made is a resident of Queensland; or
(ii)the court will hear the application in Queensland; the Queensland public interest monitor.
…
(3)The following persons may adduce additional evidence (including by calling witnesses or producing material), or make additional submissions, to the court in relation to the application to revoke or vary the order:
(a) the Commissioner;
(b) one or more other AFP members;
(c) the person in relation to whom the order is made;
(d) one or more representatives of the person;
(e) if paragraph (2)(b) applies—the Queensland public interest monitor.
(4)Subsection (3) does not otherwise limit the power of the court to control proceedings in relation to an application to revoke or vary a confirmed control order.
The Court’s determination of the application is governed by s 104.20 of the Code which states as follows:
104.20 Revocation or variation of a control order
(1)If an application is made under section 104.18 or 104.19 in respect of a confirmed control order, the court may:
(a)revoke the order if, at the time of considering the application, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or
(b)vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of considering the application, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or
(c)dismiss the application if, at the time of considering the application, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d).
(2)A revocation or variation begins to be in force when the court revokes or varies the order.
In support of the application, the Commissioner adduced evidence by his solicitor, Mr Tristan Lockwood, by affidavit affirmed on 4 June 2021: see s 104.19(3)(a) of the Code. Mr Lockwood’s affidavit outlines the reasons why the Commissioner has applied for a variation of the control order.
In summary, because Mr Khazaal is in custody, the obligations, restrictions, and prohibitions imposed by the control order should not operate against him for the period of his incarceration. Mr Lockwood’s affidavit confirms that the Commissioner is satisfied that the control order should be varied so that those obligations, prohibitions, or restrictions should no longer be imposed on Mr Khazaal while he is in custody: see s 104.19(1)(b) of the Code.
There is also evidence that the requirement in s 104.19(2)(a) of the Code has been satisfied because Mr Khazaal has been given written notice of the application and the grounds upon which it is sought.
Mr Khazaal appeared via video link assisted by an interpreter at the hearing of the Commissioner’s application on 29 June 2021. While Mr Khazaal indicated that he had not been able to obtain legal advice in relation to the application, when the nature of the application and the Commissioner’s reasons for seeking the variation were explained to him by the Court, he indicated that he did not oppose the application.
I am satisfied in all the circumstances that the Commissioner’s application should be granted and the control order should be varied. When regard is had to the various obligations, restrictions, and prohibitions in Annexure A to the orders, it is readily apparent that it is appropriate to suspend those controls during the period that Mr Khazaal remains in custody.
CONCLUSION AND DISPOSITION
In those circumstances, I propose to make the orders in accordance with the short minutes of order that have been provided to the Court by the Commissioner.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 15 July 2021
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