Gale v Homewood - [2024] FCA 264

FEDERAL COURT OF AUSTRALIA
Gale v Homewood [2024] FCA 264

File number: NSD 264 of 2024

Judgment of: PERRAM J

Date of judgment: 20 March 2024

Catchwords: CRIMINAL LAW – application for interim control order (‘ICO’) under s 104.4 of the Criminal Code (Cth) – where ICO not opposed except for condition relating to electronic monitoring – whether that condition was reasonably necessary, and reasonably appropriate and adapted, for a purpose within s 104.4(1)(d) of the Criminal Code

Legislation:
Criminal CodeAct 1995 (Cth), Sch 1, ss 80.2C, 104.4

Firearms Act 1996 (NSW)

Cases cited: Homewood v R [2023] NSWCCA 159

Division: General Division

Registry: New South Wales

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 16

Date of last submissions: 19 March 2024

Date of hearing: Determined on the papers

Counsel for the Applicant: Mr T Glover

Solicitor for the Applicant: Australian Government Solicitor

Solicitor for the Respondent: RJ O’Halloran & Co

ORDERS

NSD 264 of 2024

BETWEEN:
MATTHEW JOHN GALE

Applicant

AND:
WADE JOHN HOMEWOOD

Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

20 MARCH 2024

THE COURT ORDERS THAT:
1.The Applicant bring in short minutes of order to give effect to these reasons.

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

REASONS FOR JUDGMENT
PERRAM J:

Detective Superintendent Matthew Gale of the Australian Federal Police (‘DS Gale’) has applied for an interim control order (‘ICO’) pursuant to s 104.4 of the Criminal Code (Cth) (being Sch 1 of the Criminal Code Act 1995 (Cth)) in relation to the Respondent, Mr Homewood. Mr Homewood is presently being held in the Goulbourn Correctional Centre. His sentence expires this Friday, 22 March 2024, following which he will be released. With the consent of the Commonwealth Attorney-General (in his capacity as AFP Minister within the meaning of the Criminal Code), DS Gale seeks an ICO which will place a series of limitations on Mr Homewood upon his release.
Mr Homewood, who is represented by his solicitor, Mr O’Halloran, consents to the making of the ICO with the conditions proposed by DS Gale save that he does not consent to the imposition of the first condition, that he should wear a monitoring device for the duration of the ICO. In relation to that condition, I note that DS Gale no longer seeks condition 1.6(d).
The details of Mr Homewood’s offending are set out in the Court of Criminal Appeal’s remarks in Homewood v R [2023] NSWCCA 159 (‘Homewood v R’), with which these reasons assume familiarity. He was convicted and sentenced for advocating terrorism contrary to s 80.2C(1) of the Criminal Code and for the offence of failing to store ammunition in an approved storage space contrary to s 40(1) of the Firearms Act 1996 (NSW).
Mr Homewood is an isolated man with a number of issues which have led him down the rabbit hole of right-wing on-line extremism. Following his arrest, Mr Homewood’s electronic devices…

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 Gale v Homewood

Details

AGLC: Gale v Homewood [2024] FCA 264
Case: [2024] FCA 264
Decision Date: 20 March 2024

CaseChat Overview and Summary

The matter involved an application by the Commonwealth for an interim control order (ICO) against a person named Gale, under section 104.4 of the Criminal Code. The application was heard by the Federal Court, with the respondent, Homewood, not opposing the order except for a condition that required electronic monitoring. The crux of the dispute centred around whether the condition mandating electronic monitoring was reasonably necessary and appropriate for the purposes outlined in section 104.4(1)(d) of the Criminal Code, which includes preventing the commission of serious offences.

The legal issues before the court were to determine the necessity and appropriateness of the electronic monitoring condition in the context of preventing the commission of serious offences. This involved assessing the balance between the individual’s right to freedom and the state’s responsibility to protect the public. The court had to consider the potential risks and benefits of such a condition, weighing it against the principles of proportionality and necessity.

The court found that the condition of electronic monitoring was reasonably necessary and appropriate, given the evidence presented by the Commonwealth. It concluded that the monitoring was a proportionate response to the identified risks, ensuring public safety without unduly infringing on the individual’s rights. The court emphasised the importance of preventing serious offences and noted that the monitoring condition was tailored to achieve this objective effectively. Therefore, the court granted the interim control order with the contested condition intact.

No further orders were made beyond the court's decision to grant the interim control order with the condition for electronic monitoring. The respondent was directed to bring in short minutes of order to give effect to the court's reasons, as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The Applicant bring in short minutes of order to give effect to these reasons.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 264 of 2024
Judgment of:	PERRAM J
Date of judgment:	20 March 2024
Catchwords:	CRIMINAL LAW – application for interim control order (‘ICO’) under s 104.4 of the Criminal Code (Cth) – where ICO not opposed except for condition relating to electronic monitoring – whether that condition was reasonably necessary, and reasonably appropriate and adapted, for a purpose within s 104.4(1)(d) of the Criminal Code
Legislation:	Criminal CodeAct 1995 (Cth), Sch 1, ss 80.2C, 104.4 Firearms Act 1996 (NSW)
Cases cited:	Homewood v R [2023] NSWCCA 159
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	16
Date of last submissions:	19 March 2024
Date of hearing:	Determined on the papers
Counsel for the Applicant:	Mr T Glover
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondent:	RJ O’Halloran & Co

ORDER MADE BY:	PERRAM J
DATE OF ORDER:	20 MARCH 2024