Gaughan v Causevic (No. 2)
[2016] FCCA 1693
•8 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAUGHAN v CAUSEVIC (No. 2) | [2016] FCCA 1693 |
| Catchwords: CONTROL ORDER – Criminal Code Act 1995 (Cth) – application for confirmation of Interim Control Order – preventing terrorist act – obligations, prohibitions and restrictions – reasonably appropriated and adapted – confirmation of Interim Control Order made – variation of Interim Control Order by removal of one or more obligations, prohibitions and restrictions. |
| Legislation: Control of Weapons Act 1990 (Vic), s.5AA Criminal Code Act 1995 (Cth), ss.11.5(1), 101.6(1), 102.1(1), 104.4, 104.4(1)(c), 104.4(1)(c)(i), 104.4(1)(d)(i), 104.4(2), 104.5(3), 104.12, 104.12A, 104.14(7), 104.32 Criminal Code (Terrorist Organisation-Islamic State) Regulation 2014 (Cth) Customs Act 1901 (Cth), s.233BAB(5) Evidence Act 1995 (Cth), ss.66A, 79, 140, 191 Federal Court Practice Note CM7 Federal Court Rules 2011 (Cth), rr.23.12, 23.13 Terrorism (Community Protection) Act 2003 (Vic), s.13E |
| Cases cited: Amotts Ltd v Trade Practices Commission (1990) 24 FCR 313 Henderson v Queensland (2014) 255 CLR 1 Jabbour v Hicks [2008] FMCA 178 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549 Thomas v Mowbray (2007) 233 CLR 307 |
| Applicant: | NEIL GAUGHAN |
| Respondent: | HARUN CAUSEVIC |
| File Number: | MLG 2056 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing dates: | 20 June 2016, 21 June 2016, 22 June 2016, 23 June 2016, 27 June 2016, 28 June 2016 and 1 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 8 July 2016 |
REPRESENTATION
| Queen’s Counsel for the Applicant: | Dr Donaghue |
| Counsel for the Applicant: | Mr Tran |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Senior Counsel for the Respondent: | Dr Neal |
| Counsel for the Respondent: | Dr Boas |
| Solicitors for the Respondent: | Stary Norton Halphen Solicitors |
ORDER
Pursuant to section 104.14 of the Criminal Code the Interim Control Order made on 10 September 2015 is confirmed and varied in relation to HARUN CAUSEVIC in the terms of Attachment 1.
Attachment 1
MLG2056 of 2015
Criminal Code (Cth), sections 104.14 and 104.16
Name of Controlled Person: Harun Causevic
Pursuant to section 104.4 of the Criminal Code, contained at Schedule 1 to the Criminal Code Act 1995 (Cth) (‘the Criminal Code’), the Interim Control Order made in relation to you on 10 September 2015 is confirmed.
This confirmed Control Order has been varied from the form of the Interim Control Order by the removal of Control 2, Control 3, Control 4(iii), Control 4(iv) and Control 4(vi).
The Court is satisfied on the balance of probabilities that confirming the Interim Control Order would substantially assist in preventing a terrorist act.
The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on you by this confirmed Control Order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
The confirmed Control Order is in force until 11 September 2016, being 12 months after the day on which the Interim Control Order was made.
You are required to comply with the obligations, prohibitions and restrictions set out in Schedule 1 to the confirmed Control Order.
By virtue of section 104.27 of the Criminal Code, the maximum penalty for contravening any of these obligations, prohibitions and restrictions is imprisonment for 5 years.
Your lawyer may attend the Australian Federal Police Melbourne Office at 383 La Trobe Street, Melbourne, Victoria, between 9:00am and 4:00pm Monday to Friday in order to obtain a copy of this confirmed Control Order.
Date of this Control Order: 8 July 2016
JUDGE HARTNETT Affix Court Seal
Schedule 1
This Schedule sets out the obligations, prohibitions and restrictions imposed on you, Harun Causevic, born 29 January 1997, pursuant to section 104.5(3) of the Criminal Code.
OBLIGATIONS, PROHIBITIONS AND RESTRICTIONS
The following obligations, prohibitions and restrictions (‘Controls’) form part of the Control Order and are imposed on you pursuant to section 104.16(1)(c) of the Criminal Code.
You are required to comply with each of the Controls contained in this Schedule for the duration of the Control Order.
Unless you are otherwise informed (both orally and in writing) by the AFP, a reference to the JCTT Coordinator in this Control Order is a reference to the Coordinator, Joint Counter Terrorism Team, Australian Federal Police Melbourne Office, 383 La Trobe Street, Melbourne, Victoria.
You will be advised of the contact details for the JCTT Coordinator at the time this Interim Control Order is personally served on you.
Control 1
You are required to remain at:
(i)21 Stellato Place, Hampton Park, Victoria or
(ii)a place other than 21 Stellato Place, Victoria, which has been nominated by you and approved in writing by the JCTT Coordinator;
between 12:00am and 5:00am each day unless:
(iii)you are incarcerated in correctional facility or otherwise in the custody of law enforcement authorities; or
(iv)the JCTT Coordinator has notified you in writing, in advance, that he consents to you temporally being at some other place during those hours.
Control 2
Is removed by the Court pursuant to section 104.14(7)(b) of the Criminal Code.
Control 3
Is removed by the Court pursuant to section 104.14(7)(b) of the Criminal Code.
Control 4
You are prohibited from being at any of the following areas without the prior written approval of the JCTT Coordinator:
(i)within 500m of any Australian airport from which a person can board or charter a flight for an international destination;
(ii)within 500m of the embarkation point of any Australian port from which a person can board or charter a marine vessel for an international destination;
(iii)is removed by the Court pursuant to section 104.14(7)(b) of the Criminal Code.
(iv)is removed by the Court pursuant to section 104.14(7)(b) of the Criminal Code.
(v)within 100m of any place that you know to be a military establishment;
(vi)is removed by the Court pursuant to section 104.14(7)(b) of the Criminal Code.
(vii)inside, or in the grounds of, any prison or correctional facility (unless you are incarcerated there);
(viii)at the residence of any of the persons named in Control 8;
(ix)inside, or in the grounds of, any masjid/mosque, or any other place of observance, other than Emir Sultan Mosque located at 139 Cleeland St, Dandenong;
(x)any place in Australia outside the State of Victoria.
Control 5
You are prohibited from leaving Australia.
Control 6
You are prohibited from carrying out, or attempting to carry out, the following specified activities (including in the course of your work or occupation):
(i)acquiring, taking possession of, producing, accessing or supplying information or documentation (including in electronic form), or attempting to acquire, take possession of, produce, access or supply information or documentation (including in electronic form), which relate to any of the following:
a.explosives, explosive devices, initiation systems or firing devices;
b.weapons or ammunition; or
c.anti-surveillance or counter surveillance techniques or activities;
(ii)accessing, acquiring, possessing, accumulating, storing or distributing electronic media (including documentation in electronic form) which depicts or describes any:
a.execution;
b.beheading;
c.suicide attack;
d.bombing;
e.terrorist attack;
f.propaganda and promotional material for a terrorist organisation; or
g.activities of, or associated with, the Islamic State,
unless that material:
i.is broadcast on Australian free to air television or Australian pay television;
ii.is shown in a commercial movie cinema and has been given a classification by the Australian Classification Board or Classification Review Board; or
iii.is published online by an Australian or foreign media outlet recognised by the Australian Press Council or Australian Communications and Media Authority.
Control 7
You are prohibited from possession or using any of the following specified articles or substances, or causing any person to act on your behalf to possess or use any of these specified articles or substances, namely:
(i)any firearm or ammunition; and
(ii)any quantity of any chemical which is not consistent with reasonable domestic use.
If work-related use exceeds reasonable domestic quantities, you must seek the prior written approval of the JCTT Coordinator and you may not possess or use the material in question until such approval is received.
Control 8
You are prohibited from communicating with (by any means) or voluntarily associating with:
(i)any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility; and
(ii)any of the following individuals:
a.Sevdet Besim (DOB: 22 January 1997); and
b.Ismail Safi (DOB: 24 January 1996); and
c.Eathan Cruse (DOB: 8 November 1995); and
d.Mehran Azami (DOB: 26 April 1996); and
e.Ljindim Sulejmani (DOB: 20 June 1989); and
f.Harun Mehicevic (DOB: 13 May 1972);
unless you have received the prior written consent of the JCTT Coordinator.
Control 9
You are prohibited from accessing or using any of the following specified forms of telecommunications technology or other technology, or from asking or causing any person to access or use such telecommunications technology or other technology on your behalf:
(i)any mobile telephone service other than a mobile telephone service approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the mobile telephone service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the mobile telephone service you wish to access or use; and
c.in the case of any second or subsequent mobile telephone, you provide an explanation of the requirement for the additional mobile phone service that is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has provided approval for the additional mobile phone service in writing;
(ii)any telephone service card, subscriber identification module card (‘SIM card’) or account other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a. you nominate the telephone service card, SIM card or account (as the case may be); and
b. you provide the JCTT Coordinator with sufficient details to identify the telephone service card, SIM card or account (as the case may be) you will be using; and
c. in the case of any second or subsequent telephone service card, SIM card or account, you explain why you need an additional telephone service card, SIM card or account and the explanation is satisfactory to the JCTT Coordinator; and
d. the JCTT Coordinator has approved the additional telephone service card, SIM card or account in writing;
(iii)any fixed or landline telephone service other than one that has been approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the fixed or landline telephone service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the fixed or landline telephone service that you will be accessing or using; and
c.in the case of any second or subsequent fixed or landline telephone service, you provide an explanation of the requirement for the additional fixed or landline telephone service that is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional fixed or landline telephone service in writing;
(iv)any public telephone, unless:
a.you need to use a public telephone in a case of emergency;
b.you contact the JCTT Coordinator as soon as possible after accessing or using the public telephone;
c.you provide sufficient detail to the JCTT Coordinator to identify the public telephone that you accessed or used; and
d.you explain the nature of the emergency which required you to access or use that public telephone;
(v)any satellite telephone service;
(vi)any Voice Over Internet Protocol (‘VOIP’) service, including any software, mobile application or hardware that will facilitate a VOIP service (for example, ‘FaceTime’, ‘WhatsApp’, ‘Viber’, ‘Telegram” and ‘Skype’), other than that has been approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the VIOP service, including any software or hardware that you intend to use to facilitate the VIOP service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using; and
c.in the case of any second or subsequent VOIP service, you explain why you need the additional service and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has the additional VOIP service in writing;
(vii)any internet service provider account other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a.you nominate the internet service provider account and that internet service provider account is operated and hosted within Australia; and
b.you provide the JCTT Coordinator with sufficient detail to identify the internet service provider account you will be accessing or using, and
c.in the case of any second or subsequent internet service provider account, you explain why you need the additional account and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional internet service provider account in writing;
(viii)any electronic mail (email) account other than one approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the email account and that email account is operated and hosted within Australia; and
b.you provide the JCTT Coordinator with sufficient detail to identify the email account you will be accessing or using; and
c.in the case of any second or subsequent email account, you explain why you need the additional account and the explanation is satisfactory to the JCTT Coordinator;
(ix)any computer other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a.you nominate the computer; and
b.you provide sufficient detail to the JCTT Coordinator to identify the nominated computer which you will be accessing or using; and
c.in the case of any second or subsequent computer, you explain why you need the additional computer and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional computer in writing.
Control 10
10.You are required to participate in counselling or education relating to your spiritual, emotional and physical wellbeing for a period of at least 60 minutes every week (unless any proposed variation of the amount and frequency of counselling has been agreed in writing by the JCTT Coordinator) with a suitably qualified professional counsellor or religious leader:
(i)nominated by you, provided:
a.that person has agreed to provide you with counselling or education relating to your spiritual, emotional and physical wellbeing; and
b.the JCTT Coordinator has agreed in writing to counselling or education being provided to you by that person; or
(ii)nominated by the JCTT Coordinator, in the event you do not nominate a suitably qualified professional counsellor or religious leader.
You may withdraw your consent to participate in counselling or education at any time, and you may change your counsellor or religious leader at any time to another person nominated by you and agreed in writing by the JCTT Coordinator.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2056 of 2015
| NEIL GAUGHAN |
Applicant
And
| HARUN CAUSEVIC |
Respondent
REASONS FOR JUDGMENT
(With redactions)
Introduction
On 10 September 2015 the Court made an Interim Control Order in respect of the Respondent, Harun Causevic. That Interim Control Order is annexed to these reasons. That order was made ex parte and on the basis of the evidence placed before the Court, at the time of the making of the order, by the Applicant. The order was made under Division 104 s.104.4 of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’). The order had been sought by the Applicant at that time on the basis that the Respondent had planned to participate in a terrorist attack on Anzac Day 2015 at either the Shrine of Remembrance or the Dandenong RSL. The requisite standard of proof was and remains on the balance of probabilities as set out in s.104.4(1)(c) of the Criminal Code. The controls as contained in the Interim Control Order had no effect until the Respondent was personally served with the orders. The Court is satisfied that an Australian Federal Police (AFP) member has complied with the requirements of s.104.12 of the Criminal Code and the Court notes that the Respondent did not challenge that these requirements had been satisfied.
The Applicant is an Assistant Commissioner of the AFP. He is the national manager of the AFP’s Counter Terrorism portfolio. The Applicant elected, on 28 October 2015, to seek confirmation of the Interim Control Order pursuant to s.104.12A of the Criminal Code. The process for so doing is as set out in Division 104 of the Criminal Code. The confirmation hearing was originally scheduled to occur on 2 December 2015. The matter was adjourned, at the request of the parties, to 22 February 2016. At the confirmation hearing on 22 February 2016 the Respondent sought an adjournment which was acceded to by the Court, and the confirmation hearing was listed for 10 days commencing on 20 June 2016.
Pursuant to s.104.14(7) of the Criminal Code the Court may at the time of confirming the Interim Control Order:-
a)revoke the Interim Control Order if the Court is not satisfied on the balance of probabilities that the order would substantially assist in preventing a terrorist act as set out in s.104.4(1)(c) of the Criminal Code; or
b)confirm and vary the Interim Control Order if the Court is satisfied on the balance of probabilities that the order would substantially assist in preventing a terrorist act (s.104.4(1)(c)(i) of the Criminal Code) but is not satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act as mentioned in s.104.4(1)(d)(i) of the Criminal Code; or
c)confirm the Interim Control Order without variation if the Court is satisfied on the balance of probabilities that the order would substantially assist in preventing a terrorist act (s.104.4(1)(c)(i) of the Criminal Code) and 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 order is reasonably necessary and reasonably appropriate and adapted for the purposes of protecting the public from a terrorist act as mentioned in s.104.4(1)(d)(i) of the Criminal Code.
Thus the Court’s power to confirm the Interim Control Order is conditioned on the same two matters that the Court considered when making the Interim Control Order.[1] The ground on which the Applicant relies for the confirming of the Interim Control Order is as set out in s.104.4(1)(c)(i) of the Criminal Code which is as follows:-
[1] Thomas v Mowbray (2007) 233 CLR 307 at 325 [9] (Gleeson CJ), 415 [309] (Kirby), 444 [394], 470 [480] (Hayne J).
“104.4 Making an interim control order
(1) The issuing court may make an order under this section in relation to the person, but only if:
…
(c) the court is satisfied on the balance of probabilities:
(i) that making the order would substantially assist in preventing a terrorist act; or…”
A ‘terrorist act’ is defined in the Criminal Code as:-
““terrorist act” means an action or threat of action where:
(a) the action falls within subsection (2) and does not fall within subsection (3); and
(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and
(c) the action is done or the threat is made with the intention of:
(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or
(ii) intimidating the public or a section of the public.
(2) Action falls within this subsection if it:
(a) causes serious harm that is physical harm to a person; or
(b) causes serious damage to property; or
(c) causes a person's death; or
(d) endangers a person's life, other than the life of the person taking the action; or
(e) creates a serious risk to the health or safety of the public or a section of the public; or
(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:
(i) an information system; or
(ii) a telecommunications system; or
(iii) a financial system; or
(iv) a system used for the delivery of essential government services; or
(v) a system used for, or by, an essential public utility; or
(vi) a system used for, or by, a transport system.
(3) Action falls within this subsection if it:
(a) is advocacy, protest, dissent or industrial action; and
(b) is not intended:
(i) to cause serious harm that is physical harm to a person; or
(ii) to cause a person's death; or
(iii) to endanger the life of a person, other than the person taking the action; or
(iv) to create a serious risk to the health or safety of the public or a section of the public.”
Controls can be justified for other purposes in s.104.4(1)(d) of the Criminal Code, but it is the below purpose upon which the Applicant relies. Section 104.4(1)(d)(i) of the Criminal Code provides that the Court must be 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:
(i) protecting the public from a terrorist act; or …”
Section 104.5(3) of the Criminal Code sets out the kinds of controls which the Court may impose on the Respondent and most of the obligations, prohibitions and restrictions contained therein are sought by the Applicant in these proceedings. In respect of such controls s.104.4(2) of the Criminal Code provides that:-
“104.4(2) In determining whether each of the obligations, prohibitions and restrictions to be imposed on the person by the order is reasonably necessary, and reasonably appropriate and adapted, the court must take into account the impact of the obligations, prohibition and restrictions on the person’s circumstances (including the person’s financial and personal circumstances).”
The Court notes s.104.32 of the Criminal Code which provides a sunset provision for control orders. Any control order in force as at 9 September 2018 will cease to be in force. Of course further sunset provisions may be enacted.
Standard of proof
The Court must have regard to s.140 of the Evidence Act 1995 (Cth). That section provides as follows:-
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
In Thomas v Mowbray (2007) 233 CLR 307, Gummow and Crennan JJ accepted that, in weighing the evidence, the Act requires proof on the civil standard, albeit that will “require application of the principles in Briginshaw v Briginshaw”.[2] In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J said:-
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[3]
[2] Ibid at 331 [19].
[3] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
Where circumstantial evidence is relied upon, as by the Applicant in these proceedings, it is sufficient that the circumstances raise a more probable inference in favour of what is alleged.[4] It is not necessary to exclude all reasonable hypotheses to the contrary, even in respect of grave allegations in criminal conduct.[5]
[4] Palmer v Dolman [2005] NSWCA 361 at [33]-[40]; Chong v CC Containers Pty Ltd [2015] VSCA 137 at [176].
[5] Chong v CC Containers Pty Ltd [2015] VSCA 137 at [41]-[54].
In Henderson v Queensland (2014) 255 CLR 1, Gageler J considered the civil standard of proof in its application to circumstantial evidence. His Honour said as follows:-
“87. Two explanations of the ordinary civil standard of proof, although lengthy, are usefully recalled in this context. One is that of Dixon CJ in Murray v Murray[6] with reference to Briginshaw v Briginshaw[7]:
[6] Murray v Murray (1960) 33 ALJR 521 at 524.
[7] Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363.
…
88. The other is the often repeated explanation of Dixon, Williams, Webb, Fullagar and Kitto JJ in Broadshaw v McEwans Pty Ltd[8]:
[8] Broadshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5.
“The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while [in] the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough [if] the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture … But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusions may fall short of certainty it is not to be regarded as a mere conjecture or surmise.”
Applying those principles to the civil case before them, in which the plaintiff bore the legal burden of proving harm to have arisen from the defendant’s negligence, their Honours went on to explain the following[9]:-
“Once the plaintiff offers evidence which standing by itself raises a higher degree of probability that the harm arose from negligence for which the defendant is reasonable that will support a verdict unless the defendant goes into evidence… All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”
89. Generally speaking, and subject to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists. The threshold requirement for the party that bears the burden of proof to adduce such evidence at least to establish some fact which provides the basis for such a further inference was explained by Kitto J in Jones v Dunkel:
‘One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specified state of affairs existed.’”[10]
[9] Ibid at 5-6.
[10] Henderson v Queensland (2014) 255 CLR 1, at 27-28.
The rule in Jones v Dunkel (1959) 101 CLR 298 is explained by Heydon, Crennan and Bell JJ in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 as follows:-
“63. The rule in Jones v Dunkel[11] that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness.[12] The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[13] These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.[14]…
64. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.[15]…”
[11] Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320-321.
[12] Diosa v Latec Finance Pty Ltd [No 1] [1966] 1 NSWR 255 at 276-277.
[13] Australian Securities and Investments Commission v Fortescue Metals Group Ltd(No 5) (2009) 264 ALR 201 at 225 [102].
[14] Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419.
[15] Dilosa v Latec Finance Pty Ltd [No 1] [1966] 1 NSWR 255.
Relevant principles
There is no doubt that the consequences for the Respondent of confirming the Interim Control Order are grave. Such consequences include a significant deprivation of his liberties. The task of the Court however is “not to determine whether or not the Respondent should be punished or further punished for any of his activities… The matters are to be considered on what could be described as a prospective basis – what is to occur in the future so that the public is protected from a terrorist act.” [16]
[16] Jabbour v Hicks [2008] FMCA 178 at [8].
In Thomas v Mowbray[17] Gleeson CJ explained the judicial function in exercising the jurisdiction conferred on the Court by the control order regime as set out in the Criminal Code to be as follows:-
“…The court must make inferences and predictions as to whether the skills, information or other resources of the subject of the proposed order are capable of facilitating the commission of the contemplated terrorist act, whether the persons planning a terrorist act are likely to be able to make use of those skills or other resources, and whether the making of a control order would substantially assist in preventing the terrorist act. The requirement that a court consider whether each of the obligations imposed by a control order is both reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public was the subject of debate. A requirement of that kind would sometimes be described as a requirement of proportionality.[18] Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order.”[19]
[17] (2007) 233 CLR 307.
[18] Cf. Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 196-200 [31]-[40].
[19] Thomas v Mowbray (2007) 233 CLR 307 at 331 [19].
Gummow and Crennan JJ described the judicial task in deciding which controls to impose as follows:-
“99. Judicial techniques must then be applied to each proposed obligation, prohibition and restriction. Section 104.4(1) requires in par (d) that each of these be measured against what is “reasonably necessary” and also against what is “reasonably appropriate and adapted” for attainment of the purpose of public protection from a terrorist act. This is weighed with the impact upon the circumstances of the person in question as a “balancing exercise” (s 104.4(2)).
…
103. This notion of sufficient connection between the desired end and the means proposed for its attainment may have its origins in constitutional law, but is capable of judicial application elsewhere. Section 104.4(1) is an example. So also is the use made of notions of reasonable necessity and “reasonably appropriate and adapted” in the balancing exercise required of the issuing court by s 104.4(2).”[20]
[20] Ibid at 352 [99] and [103].
The Evidence
The Applicant relied upon the following affidavit evidence in these proceedings:-
a)affidavits of the Applicant sworn on 9 September 2015 and 3 June 2016;
b)affidavit of Sergeant Paul Anthony Ryan sworn on 8 February 2016;
c)affidavits of Senior Constable Murat Bozkurt affirmed on 8 February 2016 and 23 June 2016;
d)affidavits of Detective Leading Constable Michael John Tainton sworn on 8 February 2016 and 23 June 2016;
e)affidavit of Detective Acting Sergeant Adam Francis Foley sworn on 9 February 2016;
f)affidavit of Detective Leading Constable Jamie Maxwell Fletcher sworn on 8 February 2016;
g)affidavit of Dr Tahnee Dunlop affirmed on 14 June 2016;
h)affidavit of Mr Calvin Peter Wills affirmed on 8 February 2016;
i)affidavit of Ms Zeljka Mariani sworn on 1 February 2016
j)affidavit of Victoria Police Leading Senior Constable ‘SO 53’ sworn on 8 February 2016; and
k)affidavit of Constable Alexandra Macaulay sworn on 9 June 2016.
On the confirmation hearing proceeding, some parts of the affidavit evidence relied upon by the Applicant at the earlier interim control order proceeding were struck out by agreement between the parties or by order of the Court.
In respect of the affidavit evidence relied upon by the Applicant, the Respondent challenged, by cross-examination, the evidence of:-
a)the Applicant;
b)Senior Constable Murat Bozkurt;
c)Detective Leading Constable Michael John Tainton;
d)Sergeant Paul Anthony Ryan; and
e)Detective Acting Sergeant Adam Francis Foley.
The unchallenged evidence of the remaining witnesses is accepted by the Court.
The Respondent relied upon the following affidavit evidence in these proceedings:-
a)affidavit of Imam Ibrahim Omerdic sworn on 10 June 2016;
b)affidavits of Mrs Suada Causevic, the Respondent’s mother, affirmed on 17 June 2016, 26 June 2016 and 27 June 2016; and
c)affidavit of Ms Monique Toohey affirmed on 27 June 2016. Accompanying that affidavit and tendered in evidence as exhibits, were a further four reports prepared by Ms Toohey, Psychologist. The last of such reports dated the 26 June 2016 was prepared after Ms Toohey had been provided with Practice Note CM7: Expert Witnesses in proceedings in the Federal Court of Australia and with reference to r.23.12 of the Federal Court Rules 2011 (Cth) which governs the provision to the Court of expert evidence.
The Respondent sought to rely upon affidavit evidence of Ms Zerina Causevic, the Respondent’s sister. She was not available for cross-examination. The Court determined the affidavit evidence was not admissible in the proceedings.
The Applicant challenged by cross-examination the evidence of Imam Ibrahim Omerdic, Mrs Suada Causevic and Ms Monique Toohey.
The Respondent did not place any evidence on his own behalf before the Court. Forming part of the evidence of the Applicant was the Respondent’s Record of Interview entitled “Record of interview between Federal Agent Owen Coulson and Harun Causevic conducted at AFP Headquarters, 383 La Trobe Street Melbourne, on Saturday 18 April 2015” at pages 8137 to 8339 of Annexure B to Exhibit NG-1 of the Applicant’s affidavit sworn on 9 September 2015 (“the Record of Interview”).
Various exhibits were tendered in evidence by the Applicant and Respondent. They shall remain in the possession of the Court until the expiration of the appeal period in respect of these proceedings at which time they can be returned to the party who tendered the exhibit.
The Applicant seeks in these proceedings confirmation of the Interim Control Order made in relation to the Respondent on 10 September 2015 and for such confirmed Control Order to be in force until 11 September 2016, being 12 months after the day on which the Interim Control Order was made. The Applicant seeks a variation to the form of the Interim Control Order by the removal of Control 2(i) and Control 4(vi). These variations are consequent upon the lack of necessity for such orders. The tracking device worn by the Respondent was fitted pursuant to the Interim Control Orders. There is no longer in existence the Al-Furqan mosque.
The Respondent seeks in these proceedings that the Court not confirm the Interim Control Order. Should the Court confirm the Interim Control Order then the Respondent submits that only control number 10 should be imposed. The Respondent is willing to give an undertaking to the Court that separately from the control order regime, the Respondent would undertake to the Court to:-
a)continue consultations with Ms Toohey at a minimum of once every two weeks;
b)continue sessions with Imam Omerdic at a minimum of once every two weeks;
c)continue to live at his family home.
The Respondent submits in respect of the above that there would need to be flexibility in the fulfilment of these undertakings to account for employment, illness or absence of any of the participants for a period, and any adjustments could be made accordingly. If the Respondent failed to materially comply with the undertakings the matter could be brought back to Court to be determined. Clearly, if circumstances changed, it would also be open for the Applicant to apply for a further control order.
Respondent’s Background
The Respondent is an Australia citizen. He was born on 29 January 1997. He is now aged 19 years and five months approximately. In April 2015, when many of the events described hereafter occurred, he was aged 18 years and nearly three months. The Respondent does, and has throughout the relevant period of time, resided in his parents’ home in Hampton Park in the State of Victoria. It is an Islamic faith household. The Respondent is the middle child in a family of three siblings. His elder sister and younger brother also reside in the family home with the Respondent and their parents.
The Respondent attended primary and secondary school at Minaret College, a Muslim school in Springvale. Upon the Respondent’s parents commencing to reside in Hampton Park, he changed schools, and in year 9 commenced attending Hampton Park Secondary School. The Respondent struggled with school attendance at the new school and for reasons referred to in paragraph 30 hereafter, the Respondent ceased his attendance at that school in the August of his commencing year, and travelled to Bosnia to stay with his mother’s family for a time. The Respondent then recommenced school at Noble Park Secondary College in year 10. He was, according to his mother’s evidence, not academic and did not particularly like school. He left secondary school during year 11, having completed year 10, and commenced to attend a pre-apprenticeship carpentry course at Chisholm TAFE situated in Stud Road, Dandenong. His mother’s further evidence was that he was not then taking TAFE seriously and thus she and her husband in late 2014, thought it would be good to find their son a partner in Bosnia. To that end, his mother, knowing the Respondent’s passport had expired, helped her son with the application process to obtain a new one in the “first part of 2015”. She did not, at that time however, make any travel plans for him to depart Australia. Nor did the Respondent make such travel plans himself.
The Respondent’s parents had fled Bosnia during the Bosnian war. They were granted refugee visas to enter Australia in October 1995. Both parents continue to have extensive family ties in Bosnia. The family returned to Bosnia to visit extended family in 2002 and 2009. In August 2012 the Respondent travelled alone to Bosnia to stay with his mother’s brother. He remained until his return to Australia in January 2013. The Respondent’s father travelled to Bosnia in this period, when his work in Australia permitted. He remained with his son for a period of approximately two to three weeks before he returned to his employment in Australia. This trip taken by the Respondent was a consequence of the incident described in the following paragraph.
In 2012, the Respondent turned 15 years of age. The Respondent was interested in participating in a large variety of sports. There was a source of tension between he and his mother as to his engagement in, as his mother described it, ‘rough sports.’ His mother did not want somebody to be hurt, or someone to hurt her son. The Respondent in this period of time was quite verbally abusive and threatening toward his parents. On 24 July 2012 there was an incident at the family home. The Respondent’s request to be taken to football and the gym was not immediately acceded to. The Respondent responded by punching holes in his bedroom walls and by holding a kitchen knife in his hand and threatening to kill his father. His father responded by calling the police to attend at the home. The mother’s statement to the police as to this incident indicated that the Respondent did not point the knife at his parents, but rather made the threat to his father and walked away. The Respondent was charged with threatening to kill and damage to property. The charges were subsequently withdrawn and the Respondent thereafter spent five months in Bosnia in the household of his uncle, as arranged by his parents. The Respondent’s mother described in her evidence this period as a time of change for the Respondent brought about by puberty. She described him as angry and gave evidence that “he’s just angry he just talks.” She said she knew her son was going to change and cease such behaviours and she waited for the change to occur. She observed that it had occurred. Her evidence was that no further threats, with or without weapons, have been made to any member of the family since 2012. The evidence as to this particular evening also included a statement by the Respondent’s older sister of threats to her life by her brother around that time. She claimed however not to be scared of him, and on the night of 24 July 2012, she went into the Respondent’s bedroom to ask him where the knife was. By that time the Respondent had placed the kitchen knife back in the kitchen drawer. It is clear on the evidence that at that time there were significant and concerning difficulties in the relationship between the Respondent and his family members. However the mother’s evidence is that those difficulties have passed. The mother’s evidence was that the Respondent and his sister are now “real brother and sister. Never better” and that the Respondent is “a real, older brother, almost like his father” to his brother who is eight years his junior. She further described the relationship between father and son (the Respondent) as “super. Very good.”
Evidence as to the above incident was not led by the Applicant in support of his application. It was first raised in the cross-examination of Ms Toohey. Both Ms Toohey and the Respondent’s mother gave evidence that it did not reflect the relationship the Respondent now has with his family. The Applicant also gave evidence that the Respondent receives “very, very good support from his family.” (Remainder of paragraph redacted).
Before continuing further to set out the Respondent’s history and how it is he came to be a Respondent in these proceedings, I shall set out briefly a background of Islamic State and Al-Furqan.
Background of Islamic State
Islamic State is an organisation that was listed as a ‘terrorist organisation’ for the purposes of s.102.1(1) of the Criminal Code by the Australian government on 11 July 2014 under the Criminal Code (Terrorist Organisation-Islamic State) Regulation 2014 (Cth). The Islamic State was listed by the Australian Government as a terrorist organisation under its former name Al-Qaida on 2 March 2005. Islamic State, also formerly known as the Islamic State of Iraq and the Levant (‘ISIL’) and the Islamic State of Iraq and al-Sham (‘ISIS’), follows an extreme interpretation of Sunni Islam which is anti-Western, promotes sectarian violence and targets non-Muslims and Muslims who do not agree with its interpretation of Islam. It has perpetrated serious violations of international humanitarian law and gross abuses of human rights in Iraq and Syria and has been responsible for the execution of a number of Western hostages.
Islamic State originated in Iraq and currently controls areas of Iraq and Syria. Islamic State aspires to overthrow both the Iraqi Government and the Syrian regime of President Bashar al-Assad. The ultimate aim of the organisation is to establish, through armed conflict, a global Islamic theocracy referred to as ‘the Caliphate’.
Islamic State has actively encouraged its supporters to adopt a ‘lone wolf’ strategy in attacking members of the community and western government officials in support of its ideology. The fatwa issued by Shaykh Abu Muhammad Al-‘Adnani Ash-Shami (Al-‘Adnani), the official spokesperson of Islamic State on 22 September 2014, specifically ordered followers to target the Australian Government or the wider Australian public. The fatwa was widely reported in the Australian media.
An English translation of part of the fatwa is as follows:-
“You must strike the soldiers, patrons and troops of the tawaghīt [‘tyrants’]. Strike their police, security and intelligence members as well as their treacherous agents ... If you can kill a disbelieving American or European - especially the spiteful and filthy French - or an Australian, or a Canadian…then rely upon Allah, and kill him in any manner or way however it may be… Do not ask for anyone’s advice and do not seek anyone's verdict. Kill the disbeliever whether he is civilian or military, for they have the same ruling. Both of them are disbelievers…”
“If you are not able to find an IED or a bullet, then single out the disbelieving American, Frenchman, or any of their allies. Smash his head with a rock, or slaughter him with a knife, or run him over with your car, or throw him down from a high place, or choke him, or poison him.”
Islamic State has produced a large number of sophisticated online propaganda videos conveying similar messages to its followers.
Al-Furqan
Al-Furqan Islamic Information Centre (Al-Furqan) was an Islamic community centre located at 5 Wardale Road, Noble Park, in the State of Victoria. It was openly supportive of Islamic State and regularly attracted individuals who believed in an extremist interpretation of Islam. Al-Furqan followed the concepts of Sheikh Abu Muhammad Al-Maqdisi who encourages the rejection of democracy and urges Muslims to undertake hijra (migration) from a non-believers’ country to an Islamic environment. Mr Harun Mehicevic (‘Mr Mehicevic’) established Al-Furqan, was the Imam of Al-Furqan and was actively involved in its social events. Mr Mehicevic espouses an extreme form of Islam known as Wahhabi Salafism, is critical of members of the Islamic community who engage with Australian authorities, and has been ostracised from the broader Islamic community in light of his extreme views. On 23 April 2015 Al-Furqan announced that it would close due to “constant harassment, pressure and false allegations.”
Respondent’s attendance at Al-Furqan
The Respondent attended Al-Furqan sometimes. Indeed in the Respondent’s Record of Interview, the Respondent said that he used to attend there “quite a bit” but then further added “then I kind of stopped”. Other associates and/or friends of the Respondent attended Al-Furqan regularly.
The Respondent also attended the Emir Sultan Mosque at 139 Cleeland Street Dandenong and other mosques depending on his geographical location at the relevant time. He continues to attend the Emir Sultan mosque and such other mosques as permitted by the JCTT as provided for under control 4 of the Interim Control Order.
Respondent’s friends and associates
Mr Ahmad Human Haider (‘Mr Haider’) was born on the 18 November 1995 and died on the 23 September 2014. He was 18 years of age. He was a close friend of the Respondent. He was also a close friend of Mr Sevdet Besim (‘Mr Besim’). Mr Besim and the Respondent were close friends.
The Respondent, Mr Besim and Mr Haider were also known to be close friends of Mohammad Irfaan Hussein ('Mr Hussein'), born 17 July 1995. Mr Haider, Mr Besim and Mr Hussein regularly attended the Al-Furqan mosque. Mr Hussein departed Australia on 7 September 2014 and is reported to have been killed in March 2015 while fighting for Islamic State in Syria. The Respondent knew Mr Hussein had travelled to Syria and had died while fighting for Islamic State. He viewed the image of Mr Hussein’s body on the Liveleak website on or about 19 March 2015 when an SMS containing a link to a page on that website was sent to the Respondent by Mr Besim.
The Respondent, Mr Besim and Mr Ljindim Sulejmani, born 20 June 1989 and thus 25 years old in September 2014, and who also regularly attended the Al-Furqan mosque, were in the company of Mr Haider at a natural spring in the Warburton area of Victoria in the earlier part of the day of 23 September 2014. Before this time Mr Haider had been told his application for an Australian passport would not be progressed. Additionally and on the 18 September 2014, in the Dandenong shopping plaza, Mr Haider waved a black Shahada flag and yelled out in a foreign language. He then yelled at police officers who were present and said words to the following effect “I am not going to blow up the shopping centre today”; “I’ve got nothing against you personally, it’s against your Government and Australia”; and “You will pay for what happened in Brisbane and Sydney today” (being a reference to the execution of search warrants and charging of persons for terrorism offences). On 22 September 2014, instructions in the form of the fatwa referred to in paragraph 36 issued. Mr Haider’s mobile phone contained extracts of the fatwa. None of the Respondent, Mr Besim and Mr Sulejmani were in the company of Mr Haider when, later in the day of 23 September 2014, Mr Haider stabbed two police officers in an unprovoked attack outside the Endeavour Hills Police Station, while in possession of a black Shahada flag and two knives. Mr Haider was fatally shot during the attack and died from his injuries.
The Respondent also knew Mr Ismail Safi (‘Mr Safi’) and Mr Eathan Oswald Alma Cruse (‘Mr Cruse’). Both those persons regularly attended the Al-Furqan mosque.
The Respondent was an associate of Mr Mehran Azami (‘Mr Azami’). Mr Azami was also an associate of Mr Besim and Mr Haider. On 15 April 2015 the Respondent acquired two Cold Steel “AK-47” knives he was later found to be in possession of, from Mr Azami. On the same day, the Respondent was given a Cold Steel ‘Trench’ knife by Mr Azami and told to ‘just keep it for a while’. The Respondent claimed in his Record of Interview to have purchased one of the “AK-47” knives for ‘fishing’ and the other for a male called ‘Jess’ at work. In a phone call lawfully recorded between the Respondent and Mr Azami on the 15 April 2015, the Respondent referred to purchasing one knife for a mate with whom he worked.
On 29 July 2015, Mr Azami pleaded guilty in the Melbourne Magistrates’ Court to 19 counts of importing tier 2 goods contrary to s.233BAB(5) of the Customs Act 1901 (Cth) and three counts of possessing a prohibited weapon contrary to s.5AA of the Control of Weapons Act 1990 (Vic).
JCTT involvement
Following Mr Haider’s attack on the two police officers at Endeavour Hills Police Station on 23 September 2014, the Respondent came to the attention of the Joint Counter Terrorism Team (‘JCTT’) in Melbourne. The JCTT is comprised of investigators and specialists from relevant Commonwealth and Victorian agencies.
The JCTT police officers conducted a raid on the parents of the Respondent’s family home at approximately 3:30am on the morning of 18 April 2015. The Respondent’s mother in her affidavit affirmed on 27 June 2016 described a scene which she said caused her to be paralysed and shaking from fear. She thought someone had come to kill her and her family.
The Respondent was arrested on 18 April 2015. In his Record of Interview with the JCTT after his arrest, the Respondent denied any involvement with a plan to commit a terrorist act on Anzac Day. He provided some explanations for his conduct which the JCTT did not consider to be plausible.
On 18 April 2015 and during a search of the Respondent’s parents’ home the following items, belonging to the Respondent, were seized:-
a)two Cold Steel “AK-47” foldable knives, located in the Respondent’s bedroom, one being under his pillow and the other in his wardrobe;
b)a Cold Steel “Trench” knife, which is a combination of a knife and a knuckleduster with four rings, found in the Respondent’s car;
c)a camouflage-print tactical vest;
d)a black Shahada flag found in the Respondent’s car;
e)an Apple iPhone 6 and Apple iPhone 5C;
f)a Lexar USB; and
g)an envelope with the following numbers and names written on it found in the Respondent’s wardrobe:
i)+90 (537) … 59 – abu hafs al australi
ii)+90 (538) 243 26 19 – abu sufyan al australi
iii)+09 (534) … 84 – abu farris al britani
Subsequent enquiries revealed that the numbers on the envelope were Turkish telephone numbers that had come to the attention of counter terrorism authorities in Sydney in the course of Operation Appleby, an investigation into the recruitment of Australians as foreign fighters and the facilitation of their travel into Syria and Iraq.
On 18 April 2015 the Respondent was taken into custody in accordance with an interim prevention detention order (PDO) issued on 17 April 2015 by Justice Riordan of the Supreme Court of Victoria under s.13E of the Terrorism (Community Protection) Act 2003 (Vic).
On 18 April 2015 Mr Besim was arrested and charged with a terrorism offence relating to plans around Anzac Day. A 14 year old male in the UK was also charged in relation to the planned attack. Mr Besim has now entered a plea of guilty to the charge of doing acts in preparation for, or planning, a terrorist act contrary to s.101.6(1) of the Criminal Code.
On 20 April 2015 the Respondent was removed from detention under the interim PDO and charged with conspiracy to do an act in preparation for, or planning, a terrorist act, contrary to ss.11.5(1) and 101.6(1) of the Criminal Code which carries a maximum penalty of imprisonment for life. The charge related to a plan to carry out a terrorist attack in Melbourne on or around 25 April 2015. The Respondent was remanded at Melbourne Assessment Prison until 29 April 2015 when he arrived at Metropolitan Remand Centre Deakin Side.
Whilst on remand at Metropolitan Remand Centre the Respondent was free to leave his cell between the hours of 8:30am and 7:30pm Monday to Friday and 8:30am to 6:30pm on Saturday and Sunday. The Respondent could associate with any other person from Deakin B Side at this time. The Respondent and Mr Besim spoke to each other while on remand. This is not surprising given they knew each other, knew no one else, and were placed in the same location. Mr Paul Pretty, Corrections Victoria Supervisor, said relevantly in a statement of 28 August 2015:-
“12. I am not able to say whether CAUSEVIC did use the gym equipment or play sports, however I do remember he would regularly walk around the perimeter of the exercise yard with a couple of detainees and talk. This group of people would vary, even though CAUSEVIC knew BESIM they would not always spend time in the exercise yard together.
13. Throughout CAUSEVIC’S time on remand he would often associate with BESIM, however I did note that leading up to the Court appearance CAUSEVIC would not associate with BESIM as often. I did note that towards the end of his time on remand I observed CAUSEVIC also associate with Alex ILIAGIUEV. CAUSEVIC was polite to staff and appeared to have a reasonable rapport with people on Deakin B Side.
…”
While in remand, Corrections Victoria lawfully recorded a number of telephone calls between the Respondent and his parents. In these calls the Respondent’s parents:-
a)expressed anger and concern at the Respondent’s continuing close association with Mr Besim;
b)described Mr Besim as a bad influence who contributed to the Respondent’s incarceration; and
c)repeatedly told the Respondent to stop associating with Mr Besim.
In many of the conversations had between the Respondent and his parents, the Respondent defended his relationship with Mr Besim.
On 25 August 2015, the Commonwealth Director of Public Prosecutions (‘CDPP’) withdrew the conspiracy charge against the Respondent. On the same day, the Respondent pleaded guilty to three counts of possessing a prohibited weapon contrary to s.5AA of the Control of Weapons Act 1990 (Vic). The Magistrates’ Court released the Respondent on conditional bail and ordered him to appear for sentencing on 12 November 2015. The terms of the Respondent’s bail required that he:-
a)not attend international points of departure;
b)not apply for a passport or any other valid travel document;
c)engage in counselling with the president of the Islamic Council of Victoria, Dr Ghaith Krayem, or his nominee; and
d)engage in counselling with psychologist Monique Toohey.
The Respondent has complied with those conditions.
The Respondent was married in a religious, not legal, ceremony in February 2016. His ‘wife’, for those purposes, is very young and at school. She is 17 years old. She and the Respondent have known each other for a long time. She resided in the Respondent’s parents household for a time. In early June 2016 she returned to the household of her family. There is some difficulty in this relationship; some immaturity; and the relationship is both ongoing and not ongoing. It is a relationship that causes some concern to the Applicant for reasons that appear to be its volatility, but that cannot be a factual finding made. It is a relationship that Ms Toohey, psychologist, considers not supportive of the Respondent and indeed not emotionally or physically safe for him.
In the approaching ten month period since the making of the Interim Control Order, there has been no breach of the Interim Control Order by the Respondent. The Respondent has had extensive family support. Before his arrest, the Respondent’s parents knew of none of his activities, being those activities that are proven and those admitted by him, save his sometime attendance at the Al-Furqan mosque. The Respondent’s mother gave evidence that she was unaware of the extreme teachings of Mr Mehicevic. The Respondent’s parents are now aware of each and every of the matters alleged against the Respondent. They have performed a strict supervisory role in respect of the Respondent since his release from custody. As said by the Applicant in evidence, there can be no doubt whatsoever that the Respondent is very fortunate to have two parents that care for him deeply.
Other evidence
A summary of the facts agreed to have been proved between the parties was tendered in evidence (pursuant to s.191 of the Evidence Act 1995 (Cth)) together with the Respondent’s Response to Notice to Admit Facts.
The Applicant’s contention that the Respondent was going to commit a terrorist act in April 2015 is founded on circumstantial evidence which requires the Court to draw inferences from evidence of circumstances that occurred prior to and in April 2015, and to some extent on observations of the Respondent’s behaviour during his imprisonment which ended in August 2015.
Despite extensive physical, telephonic and listening device surveillance of the Respondent, there is no direct evidence of any intention or plan on his part to carry out a terrorist act. The Applicant accepted that there was no direct evidence of any knowledge by the Respondent of Mr Besim’s planned attacks. Critically, there is no direct evidence that the Respondent did what Mr Besim did, which was to make unambiguous and extreme threats of violence toward police.
There is no direct evidence that the Respondent intended to assist in or knew of any plan to commit a terrorist act. Conversations lawfully intercepted between Mr Besim and the earlier referred to UK 14 year old male, contemplated a ‘lone wolf’ attack. The Applicant’s case is entirely circumstantial. There is no direct evidence of any description linking the Respondent with any plan of Mr Besim.
Shrine of Remembrance
The Shrine of Remembrance (‘the Shrine’) is the National War Memorial of Victoria located on St Kilda Road, Melbourne, in the State of Victoria.
The Applicant’s allegations are that the Respondent was conducting a reconnaissance of the Shrine of Remembrance and the Dandenong RSL on 15 April 2015. Such activities by the Respondent, it is alleged, were related to and in aid of, Mr Besim’s plans to carry out a terrorist attack on or around Anzac Day 2015.
On 2 February 2015, being over two months prior thereto, Mr Besim’s computer was used to:-
a)conduct a Google search for “Anzac day 2015”;
b)access the Australian War Memorial website and view the “Dawn Service” page;
c)view the location of the Australian War Memorial on Google Maps;
d)conduct a Google search for “Melbourne Anzac day 2015”;
e)access the Shrine of Remembrance website and view the ‘Anzac Day-25 April’ page; and
f)view the location of the Shrine of Remembrance on Google Maps.
On the 15 April 2015, ten days before Anzac Day, Mr Besim’s mobile phone was used to:-
a)access the Facebook page of the Dandenong RSL;
b)access the City of Greater Dandenong website and view the “ANZAC Day Dawn Service” and “ANZAC Day March and Service” pages; and
c)conduct a Google search for “Clow street Dandenong”, being the street on which the Dandenong RSL is located.
The Respondent, as at 15 April 2015, was a relatively inexperienced driver. He had turned 18 years of age in January 2015 and became licensed to drive a motor vehicle in February 2015. He had completed just two months of driving unaccompanied by 15 April 2015. Coming off the West Gate Bridge on that day, the roadway he was travelling was complex, and more so for an inexperienced driver returning from the first day of his job in Truganina, an area with which he was not familiar, along a route with which he was not familiar.
The Respondent, after coming off the West Gate Bridge continued along the West Gate Freeway and took the exit to Kings Way. He then travelled along Kings Way but instead of travelling onto Dandenong Road as the Apple Maps application on his iPhone indicated, he continued along Kings Way reaching its T intersection with St Kilda Road. The Respondent then had at least two options of travel back to Dandenong which was his ultimate destination. He could travel by either the South Eastern Freeway route (the Monash Freeway) or the Princes Highway route. The Respondent said in his Record of Interview of 18 April 2015, when asked about his travel route that day, that he had intended to travel the Monash Freeway route home, but there was too much traffic so he determined to travel the Princes Highway route instead. He was also concerned about the payment of road tolls. He deliberately chose “Springvale” on the Apple Maps application on his iPhone because it had no tolls. This was as opposed to “Dandenong” as the destination, which had the Monash Freeway tollways. In paragraph 9 of his affidavit Detective Acting Sergeant Foley said relevantly as to what the Respondent said in his Record of Interview:-
“9.1. he had taken a wrong turn while travelling towards Springvale and had to do a U-turn (Q1315-1317; Q1324-1328; Q1355-1399; Q1366-1367; Q1722-1780; Q1797-1805)
9.2. he followed the navigations system on his phone and did not remember driving up St Kilda Road (Q1760-1761)
9.3. he pulled over near the flower clock near Flinders Street Station and was going to pray there (Q1816-1826); and
9.4. he did not see or know what the Shrine of Remembrance was (Q1369-1371; Q1767-1768; Q1783-1799).”
Sergeant Paul Anthony Ryan is attached to the AFP Melbourne Office Surveillance Team. He was the team leader of other surveillance operations on 15 April 2015, when the team was rostered to conduct surveillance of the Respondent. Having conducted surveillance of the Respondent from the time of his departure from his workplace until his left turn into St Kilda Road, Sergeant Ryan observed the Respondent’s vehicle registration number ROU059, with the Respondent as driver and sole occupant, travelling north in the left hand lane on St Kilda Road, Melbourne. He says in paragraph 10 of his affidavit evidence, which is accepted:-
“10. About 3:32pm, when I was near the intersection of St Kilda Road and Anzac Avenue, in my rear view mirror I saw vehicle ROU059 turn sharply into a break in the median strip area that separates the two left northbound lanes of St Kilda Road from the central northbound lane next to the tram tracks. I continued driving north on St Kilda Road. I immediately radioed the other members of the team that I was about to lose sight of vehicle ROU059, and that it may be going to “flip”, meaning perform a U-turn, near Victoria Barracks. I travelled out of sight of vehicle ROU059 before I saw it move from its position in the median strip area.”
Sergeant Ryan thereafter deposes relevantly at paragraph 12 of his affidavit evidence, which is accepted:-
“12. About 3:35pm, I was travelling south on St Kilda Road adjacent to the intersection of St Kilda Road and Government House Drive. I observed vehicle ROU059 on Anzac Avenue. The vehicle was stopped on Anzac Avenue near the intersection with St Kilda Road. I pulled my vehicle into a car park on the side of St Kilda Road between Government House Drive and Anzac Avenue. A short time later, I saw vehicle ROU059 turn left from its position at the intersection of Anzac Avenue and St Kilda Road and travel south on St Kilda Road in one of the two left lanes. I remained stationary and vehicle ROU059 continued out of my sight. As a result of the radio being busy with communications between other team members, I was unable to radio my sighting through to the team before other members of the team sighted vehicle ROU059 at 3:36pm travelling south on St Kilda Road. It is that sighting that appears on the surveillance running sheet.”
The surveillance running sheet has no entry for the important observation of the Respondent’s car at the intersection of Anzac Avenue and St Kilda Road by Sergeant Ryan. It is important because it was the first sighting of the Respondent after he had travelled out of sight of the surveillance team some three minutes earlier. Rather, the surveillance running sheet records that at 3:36pm the Respondent was observed travelling south down St Kilda Road, near Domain Road. The evidence of a sighting of the Respondent’s vehicle in a stationary position, three minutes after the last sighting of his vehicle, should have been subsequently accurately recorded in the surveillance running sheet as conceded by the Applicant.
Senior Constable Bozkurt is attached to the AFP Melbourne Office Surveillance Team. On 15 April 2015 at about 1:21pm he commenced duties working in a team with other surveillance operatives conducting surveillance on the Respondent. He deposed to sometime after 3:32pm, to commence to travel northbound on St Kilda Road in the lane next to the tram lines. His evidence is as follows:-
“11. I saw vehicle ROU059 stopped on the road in the vicinity of Government House Drive and Anzac Avenue. It was positioned at the right edge of the northbound lane of St Kilda Road next to the tram lines, parallel to the road, with its right-hand indicator on.
12. Southbound traffic on St Kilda Road was very light, which would have allowed vehicle ROU059 ample time to perform a U-turn; however it did not do so. During that delay, I drove up to and passed vehicle ROU059 to its left hand side. I then maintained sight of the vehicle in my rear view mirror.
13. I observed vehicle ROU059 complete a U-turn and start to travel south on St Kilda Road in the southbound lane next to the tram lines, at which point I no longer had sight of the vehicle in my rear view mirror.”
Senior Constable Bozkurt’s further evidence in the proceedings was that he could not say where the vehicle travelled after his last sighting of the Respondent’s vehicle, but that it started to travel southbound at a slow speed. His evidence was not challenged. His sighting was the last sighting of the Respondent’s vehicle for three minutes before it was again sighted by Sergeant Ryan.
The surveillance running sheet of the 15 April 2015 – PM shift prepared by Federal Agent L. Baulch, relevantly recorded the following:-
a)3:32pm, the Respondent’s vehicle, with the Respondent as driver and sole occupant, travelled on St Kilda Road; Southbank, then performed a U-turn, near Anzac Drive and continued out of sight;
b)3:36pm, the Respondent’s vehicle, with the Respondent as driver and sole occupant, travelled on St Kilda Road, Melbourne, near Domain Road, and continued via: St Kilda Road, Melbourne, St Kilda Road, St Kilda whereat:
Investigators and forensic officers conducted a crime scene reconstruction of the route which the Respondent was observed by surveillance officers as having driven on 15 April 2015, to test the plausibility of statements made by the Respondent in his Record of Interview; to determine whether the Apple Maps iPhone Navigation system would direct a driver along the route which the Respondent was observed to have taken on 15 April 2015; and to investigate the Respondent’s possible movements within the period that surveillance operatives lost sight of him near the Shrine of Remembrance. That initial reconstruction was carried out on 30 July 2015. Detective Acting Sergeant Foley deposed as to part thereof as follows:-
“15. We entered Springvale into the Apple Maps application as the end destination, and selected a route with no tolls (ie a route which avoided Citylink and the Monash Freeway). This route directed the driver along the West Gate Freeway, across the West Gate Bridge continuing along the freeway to the exit at Kings Way, down Queens Road, onto Dandenong Road, to the Princes Highway and onwards to Springvale. The Apple Maps application did not direct us to turn north down St Kilda Road towards the city or to turn into the Shrine of Remembrance precinct (‘the Shrine precinct’).
16. During this initial reconstruction I paid attention to the road signage along the route, the directions provided by the Apple Maps navigation system and the time taken to cover the relevant distances…
…
18. During the reconstruction, when we deviated from the directions given by the Apple Maps application in in (sic) order to follow the route Causevic was observed to have driven, as recorded in the Surveillance Log, the Apple Maps application continually and constantly updated and altered its route in order to redirect the vehicle onto the correct path for travel south towards Springvale. Those new directions did not at any point require a driver to turn north down St Kilda Road towards the city or to turn into the Shrine precinct to turn around.
19. Furthermore, during the reconstruction I saw multiple road signs along the route that directed motorists wishing to travel from the West Gate Bridge to Dandenong/Springvale without the aid of GPS navigation. Those signs did not indicate that a driver should turn north down St Kilda Road towards the city or to turn into the Shrine precinct.
20. During the reconstruction, I observed that the western side of the Shrine was visible from the location where the Surveillance Log indicates that Causevic’s car was sighted by surveillance operatives in the north bound lanes of St Kilda Road. Further, the forecourt of the Shrine and the front of the Shrine were visible from where Causevic was re-located on Anzac Avenue near the intersection of Anzac Avenue and St Kilda Road.”
In fact the Apple Maps application re-routed the Respondent’s vehicle some 900m away from the Southbank Boulevard to turn right onto Southbank Boulevard.
Detective Acting Sergeant Foley’s affidavit evidence as to the Respondent’s movements during the, what he believed to be as a result of the inaccurate recording in the surveillance running sheet, four minute gap in surveillance, was relevantly as follows:-
“23. …on 4 February 2016 I carried out a second reconstruction to explore whether, in the four minute gap in surveillance, Causevic could have driven south on St Kilda Road, turned left into Domain Road and then left into Dallas Brookes Drive, and then turned left down Birdwood Avenue in order to reach the intersection of Anzac Avenue and St Kilda Road by the time when he was sighted at that intersection. Based on my review of a map of the area, that route appeared to me to be the only route that Causevic could have driven if he did in fact drive south on St Kilda Road after performing a U-Turn near Anzac Avenue, because I could not see any other route that would have allowed him to be in a position to turn left out of Anzac Avenue onto St Kilda Road around four minutes after surveillance operatives lost sight of him.
…
25. We commenced the reconstruction at 3:36pm in the north bound lane of St Kilda Road next to Victoria Barracks. We drove north a short distance, and then performed a U-turn by moving across the tram tracks and the south bound land next to those tracks and into one of the outer south bound lanes. We travelled south down St Kilda Road before turning left into Domain Road, left into Dallas Brookes Drive, left into Birdwood Avenue and then left into Anzac Avenue and the intersection with St Kilda Road. We reached this intersection at 3:40pm. We then drove this route again, completing the journey in four minutes.
…
28. On driving the route described above, I observed that this route took us in a complete circuit of the Shrine. I could see the western side of the Shrine from St Kilda Road, the back of the Shrine from Domain Road, the eastern side of the Shrine from Birdwood Avenue and the forecourt of the Shrine from Anzac Avenue.”
Detective Acting Sergeant Foley then sought to provide further hypotheses as to the Respondent’s travel during the period when he was out of sight. His evidence was as follows:-
“29. If Causevic did not drive south down St Kilda Road after performing the U-turn recorded in the Surveillance Log at 3:32pm, he must have turned from St Kilda Road into Government House Drive or Anzac Avenue almost immediately after completing that U-turn.
30. On 30 July 2015, as part of the first reconstruction, I sought to test where Causevic may have driven during the gap in surveillance if he did in fact turn off St Kilda Road into the Shrine precinct.
31. I instructed Senior Constable Huff to turn right into Birdwood Avenue from the roundabout near the forecourt of the Shrine, and noted the time as 3:50pm. We drove in the direction of Dallas Brooks Drive for two minutes. After two minutes of driving, I noted that we were close to the back of the Shrine, and about 50-100 metres away from a suitable location to perform a U-turn. I instructed Senior Constable Huff to do U-turn at that location, and we then drove back along Birdwood Avenue back to the intersection of St Kilda Road and Anzac Avenue. We reached the intersection at 3:55pm.
32. During this reconstruction, I could see the eastern side of the Shrine from Birdwood Avenue and the forecourt of the Shrine from Anzac Avenue. It took five minutes to compete this route, but we were driving slowly so that we could film the route and accurately depict the proximity and visibility of the Shrine to Birdwood Avenue.
33. In directing Senior Constable Huff to drive down Birdwood Avenue, I decided not to test whether Causevic may have driven down Government House Drive from the roundabout near the forecourt of the Shrine. I am familiar with the area and I believed that it would take well less than four minutes to drive to the gates of Government House, turn around and come back to a location near the intersection of Anzac Drive and St Kilda Road, because the gates of Government House are only a short distance down Government House Drive.
…
35. On 4 February 2016, I also tested whether Causevic may have driven up Linlithgow Avenue from the roundabout near the forecourt of the Shrine to the intersection with Southbank Boulevard-Linlithgow Avenue, before turning and coming back down Linlithgow Avenue to Anzac Avenue’s intersection with St Kilda Road. This route would take a driver close to the flower clock, which is located on the corner of St Kilda Road and Southbank Boulevard-Linlithgow Avenue. On 4 February 2016,…commenced travelling this route at 3:49 pm and returned to Anzac Avenue’s intersection with St Kilda Road at 3:52 pm. During the journey we made a U-turn around the triangular traffic island at the top of Linlithgow Avenue.”
Despite numerous hypotheses being provided and reconstructions being undertaken, the Court was not provided with evidence as to how the Apple Maps application, given its prominence in the Applicant seeking to establish the Respondent was in fact conducting a reconnaissance of the Shrine, would have directed the Respondent had he followed the northern route towards the Monash Freeway, as was canvassed in re-examination:-
“Dr Donaghue: And it was put to you, “Well, why would it have taken him down the freeway if he had entered no tolls?” Do you know what the next instruction that the iPhone was going to give, had that instruction been taken? Or is that something that was never necessary for you to investigate?
Mr Foley: No. We did ---
…
Dr Donaghue: Do you know?
Mr Foley: No. Domain Road, we tested that on, and the next direction was Punt Road, without the tolls, but insofar as that particular route’s concerned, no, we never assessed that.”
The Controls
The Court is satisfied on the balance of probabilities that confirming the Interim Control Order would substantially assist in preventing a terrorist act. This is so even though time has passed and no breach of the Interim Control Order has occurred. The matters which went to the making of the Interim Control Order are now more in the past but not comprehensively so. That view is one derived from not only the Applicant’s evidence but that of the Respondent’s also. The consideration of whether each control is reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act is discussed hereafter.
Control 1: residence requirement and curfew
Control 1 requires the Respondent to live at his family home and to stay there between midnight and 5am each day. This control is reasonably necessary for the purpose of protecting the public from a terrorist act. The control will assist Mrs Causevic, who is a positive influence, to monitor and look after the Respondent.
This control is reasonably appropriate and adapted. As drafted, the JCCT Coordinator may permit the Respondent to change address or break the curfew as and when appropriate. There has been no evidence that requiring the Respondent to live at home or to keep to a curfew has had a negative impact on the Respondent. Indeed the Respondent has no objection to it.
Controls 2 and 3: tracking device
Looking to matters of proportionality the unchallenged benefits identified by the Applicant are outweighed by the impact of the requirement to wear the tracking device on the Respondent as canvassed in these reasons and in particular on the evidence of Ms Toohey. Further, given the findings of the Court as to the various inferences the Applicant sought to be drawn these controls are no longer necessary.
Control 4: prohibited locations
In general terms, Control 4 prohibits the Respondent from going within a set distance of specific locations. The Respondent is prohibited from going near embarkation points so that he cannot travel to fight overseas, and potentially return better equipped to carry out a terrorist act. The Respondent should no longer be prohibited from going near the earlier alleged potential targets for a terrorist act, given the findings of the Court as to those matters.
In relation to mosques, the Applicant relies upon the second affidavit of the Applicant. The Applicant explained in that affidavit the reason for requiring the Respondent to get approval to attend new mosques. He was not cross-examined upon this evidence, and that evidence is accepted.
Control 5: leaving Australia
Control 5 prohibits the Respondent from leaving Australia so that he cannot travel to fight overseas, and potentially return better equipped to carry out a terrorist act. The Respondent points out he is unable to get a passport presently in any event.
Controls 6 and 7: activities and items
Control 6 prohibits certain activities, and Control 7 prohibits the possession of certain items. Both of these controls are self-explanatory.
Control 8: prohibited persons
Control 8 prohibits the Respondent from associating with certain named individuals, all of whom were attendees of Al-Furqan. It is reasonably necessary that he have space from these individuals, so as to manage the risk that any gains that may have occurred during the time since the interim control order is made will not be lost. Imam Omerdic agreed, in general terms, that it was desirable to keep the Respondent away from these people.
Control 9: devices
Control 9 limits the electronic devices the Respondent can access. Given his history of accessing the internet to learn about Islam, this is reasonably necessary and adapted to the purpose to ensure any continued de-radicalisation.
Control 10: counselling
This control requires the Applicant attend counselling. This has been beneficial for his health, and must continue.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 8 July 2016
ANNEXURE
THE COURT ORDERS, EX PARTE, THAT:
Pursuant to section 104.4 of the Criminal Code, contained at Schedule 1 to the Criminal Code Act 1995 (Cth) ('the Criminal Code'), this Interim Control Order has been made against you because:
an AFP member holding the rank of Superintendent or above, namely Acting Deputy Commissioner, has requested it in accordance with section 104.3 of the Criminal Code; and
the Court has received and considered the information put before it by the Applicant;
the Court is satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act; and
the Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on you by the Order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act.
The obligations, prohibitions and restrictions imposed on you by this Interim Control Order under section 104.5(3) of the Criminal Code are set out in Schedule 1 - see attached.
You are required to comply with these obligations, prohibitions and restrictions. By virtue of section 104.27 of the Criminal Code, the maximum penalty for contravening any of these obligations, prohibitions and restrictions is imprisonment for 5 years.
This Interim Control Order does not begin to be in force until it is served personally on you.
You may attend the Federal Circuit Court of Australia at 305 William Street, Melbourne, Victoria, on 2 December 2015 at 10am for the Court to:
confirm (with or without variation) this Interim Control Order;
declare this Interim Control Order to be void; or
revoke this Interim Control Order.
If confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made.
Your lawyer may attend the AFP's Melbourne Office at 383 La Trobe Street, Melbourne, Victoria, between 9:00am and 4:00pm Monday to Friday, in order to obtain a copy of this Interim Control Order.
A summary of the grounds on which this Interim Control Order is made is set out in Schedule 2 to this Order - see attached.
By the Court
JUDGE HARTNETT
DATE ENTERED: 10 September 2015
Application for Interim Control Order
(Division 104, Criminal Code)
Respondent: Harun Causevic
Schedule 1
This Schedule sets out the obligations, prohibitions and restrictions imposed on you, Harun Causevic, born 29 January 1997, pursuant to section 104.5(3) of the Criminal Code.
OBLIGATIONS, PROHIBITIONS AND RESTRICTIONS
This Interim Control Order is in force from the time it is personally served on you. The following obligations, prohibitions and restrictions ('Controls') form part of the Interim Control Order and are imposed on you pursuant to section 104.5(3) of the Criminal Code. You are required to comply with each of the Controls contained in this Schedule for the duration of the Interim Control Order.
Unless you are otherwise informed (both orally and in writing) by the AFP, a reference to the JCTT Coordinator in this Interim Control Order is a reference to the Coordinator, Joint Counter Terrorism Team, AFP Melbourne Office, 383 La Trobe Street, Melbourne, Victoria.
You will be advised of the contact details for the JCTT Coordinator at the time this Interim Control Order is personally served on you.
This Interim Control Order is in force from the time it is personally served on you. You are required to comply with each of the following Controls contained in this Schedule for the duration of the Interim Control Order:
Control 1
You are required to remain at:
(i)21 Stellato Place, Hampton Park, Victoria or
(ii)a place other than 21 Stellato Place, Hampton Park, Victoria which has been nominated by you and approved in writing by the JCTT Coordinator;
between 12:00am and 5:00am each day unless:
(iii)you are incarcerated in correctional facility or otherwise in the custody of law enforcement authorities; or
(iv)the JCTT Coordinator has notified you in writing, in advance, that he consents to you temporally being at some other place during those hours.
Control 2
You are required to:
(i)report to the AFP Melbourne Office, 383 La Trobe Street, Melbourne, Victoria within 24 hours of being personally served with this Interim Control Order at a time agreed with the JCTT Coordinator for the purposes of permitting officers to fit you with an electronic GPS monitoring device comprised of:
a.a tracking device;
b.a charging unit; and
c.a home monitoring unit;
and receiving instructions on using and maintaining the tracking device in working order; and
(ii)report to the AFP Melbourne Office, 383 La Trobe Street, Melbourne, Victoria at such reasonable times as are from time to time nominated by the JCTT Coordinator to facilitate the checking, replacement, repair, refitting or inspection of the tracking device, charging unit or home monitoring unit;
unless:
(iii)you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities.
Control 3
You are required to wear the tracking device specified in Control 2. This means:
(i)you must wear the tracking device at all times; and
(ii)you must not:
a.remove, tamper with, damage or destroy any component of the tracking device, charging unit or home monitoring unit; or
b.attempt to remove, tamper with, damage or destroy any component of the tracking device, charging unit or home monitoring unit; or
c.allow any other person to remove, tamper with, damage, or destroy any component of the tracking device, charging unit or home monitoring unit; or
d.allow any other person to attempt to remove, tamper with, damage, or destroy any component of the tracking device, charging unit or home monitoring unit;
unless:
i. you have prior written approval from the JCTT Coordinator; or
ii. you are required to undergo an emergency medical procedure that necessitates removal of the tracking device; or
iii. in an emergency, it is necessary to remove the device to avoid serious injury or death to yourself; or
iv. you are incarcerated in a correctional facility or otherwise in the custody of law enforcement authorities, and they require the tracking device to be removed;
(iii)you must comply with all instructions provided to you in writing by the Joint Counter Terrorism Team at any time you report as required by Control 2;
(iv)you must comply with all directions communicated to you by the JCTT Coordinator, or a member of the Joint Counter Terrorism Team, in relation to the tracking device, charging unit or home monitoring unit;
(v)you must advise the JCTT Coordinator as soon as possible after you become aware that the tracking device, charging unit or home monitoring unit is not working properly or might not be working properly; and
(vi)you must contact the JCTT Coordinator if you are unclear about your obligations in relation to the tracking device, charging unit or home monitoring unit.
Control 4
You are prohibited from being at any of the following areas without the prior written approval of the JCTT Coordinator:
(i)within 500m of any Australian airport from which a person can board or charter a flight for an international destination;
(ii)within 500m of the embarkation point of any Australian port from which a person can board or charter a marine vessel for an international destination;
(iii)within 100m of the Shrine of Remembrance, St Kilda Road, Melbourne;
(iv)within 100m of the Dandenong-Cranbourne Returned and Services League Clubhouse located at 44-50 Clow Street, Dandenong;
(v)within 100m of any place that you know to be a military establishment;
(vi)inside or within 100m of Al Furqan Islamic Information Centre located at 5 Wardale Road, Noble Park;
(vii)inside, or in the grounds of, any prison or correctional facility (unless you are incarcerated there);
(viii)at the residence of any of the persons named in Control 8;
(ix)inside, or in the grounds of, any masjid/mosque, or any other place of observance, other than Emir Sultan Mosque located at 139 Cleeland St, Dandenong;
(x)any place in Australia outside the State of Victoria:
Control 5
You are prohibited from leaving Australia.
Control 6
You are prohibited from carrying out, or attempting to carry out, the following specified activities (including in the course of your work or occupation):
(i) acquiring, taking possession of, producing, accessing or supplying information or documentation (including in electronic form), or attempting to acquire, take possession of, produce, access or supply information or documentation (including in electronic form), which relate to any of the following:
a.explosives, explosive devices, initiation systems or firing devices;
b.weapons or ammunition; or
c.anti-surveillance or counter surveillance techniques or activities;
(ii)accessing, acquiring, possessing, accumulating, storing or distributing electronic media (including documentation in electronic form) which depicts or describes any:
a. execution;
b. beheading;
c. suicide attack;
d. bombing;
e. terrorist attack;
f. propaganda and promotional material for a terrorist organisation; or
g. activities of, or associated with, the Islamic State,
unless that material:
i.is broadcast on Australian free to air television or Australian pay television;
ii.is shown in a commercial movie cinema and has been given a classification by the Australian Classification Board or Classification Review Board; or
iii.is published online by an Australian or foreign media outlet recognised by the Australian Press Council or Australian Communications and Media Authority.
Control 7
You are prohibited from possession or using any of the following specified articles or substances, or causing any person to act on your behalf to possess or use any of these specified articles or substances, namely:
(i)any firearm or ammunition; and
(ii)any quantity of any chemical which is not consistent with reasonable domestic use.
If work-related use exceeds reasonable domestic quantities, you must seek the prior written approval of the JCTT Coordinator and you may not possess or use the material in question until such approval is received.
Control 8
You are prohibited from communicating with (by any means) or voluntarily associating with:
(i)any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility; and
(ii)any of the following individuals:
a.Sevdet Besim (DOB: 22 January 1997); and
b.Ismail Safi (DOB: 24 January 1996); and
c.Eathan Cruse (DOB: 8 November 1995); and
d.Mehran Azami (DOB: 26 April 1996); and
e.Ljindim Sulejmani (DOB: 20 June 1989); and
f.Harun Mehicevic (DOB: 13 May 1972);
unless you have received the prior written consent of the JCTT Coordinator.
Control 9
You are prohibited from accessing or using any of the following specified forms of telecommunications technology or other technology, or from asking or causing any person to access or use such telecommunications technology or other technology on your behalf:
(i)any mobile telephone service other than a mobile telephone service approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the mobile telephone service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the mobile telephone service you wish to access or use; and
c.in the case of any second or subsequent mobile telephone, you provide an explanation of the requirement for the additional mobile phone service that is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has provided approval for the additional mobile phone service in writing;
(ii)any telephone service card, subscriber identification module card ('SIM card') or account other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a. you nominate the telephone service card, SIM card or account (as the case may be); and
b. you provide the JCTT Coordinator with sufficient details to identify the telephone service card, SIM card or account (as the case may be) you will be using; and
c. in the case of any second or subsequent telephone service card, SIM card or account, you explain why you need an additional telephone service card, SIM card or account and the explanation is satisfactory to the JCTT Coordinator; and
d. the JCTT Coordinator has approved the additional telephone service card, SIM card or account in writing;
(iii)any fixed or landline telephone service other than one that has been approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the fixed or landline telephone service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the fixed or landline telephone service that you will be accessing or using; and
c.in the case of any second or subsequent fixed or landline telephone service, you provide an explanation of the requirement for the additional fixed or landline telephone service that is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional fixed or landline telephone service in writing;
(iv)any public telephone, unless:
a.you need to use a public telephone in a case of emergency;
b.you contact the JCTT Coordinator as soon as possible after accessing or using the public telephone;
c.you provide sufficient detail to the JCTT Coordinator to identify the public telephone that you accessed or used; and
d.you explain the nature of the emergency which required you to access or use that public telephone;
(v)any satellite telephone service;
(vi)any Voice Over Internet Protocol (‘VOIP’) service, including any software, mobile application or hardware that will facilitate a VOIP service (for example, ‘FaceTime’, ‘WhatsApp’, ‘Viber’, ‘Telegram” and ‘Skype’), other than that has been approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the VIOP service, including any software or hardware that you intend to use to facilitate the VIOP service; and
b.you provide the JCTT Coordinator with sufficient detail to identify the service you will be accessing or using; and
c.in the case of any second or subsequent VOIP service, you explain why you need the additional service and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has the additional VOIP service in writing;
(vii)any internet service provider account other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a.you nominate the internet service provider account and that internet service provider account is operated and hosted within Australia; and
b.you provide the JCTT Coordinator with sufficient detail to identify the internet service provider account you will be accessing or using, and
c.in the case of any second or subsequent internet service provider account, you explain why you need the additional account and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional internet service provider account in writing;
(viii)any electronic mail (email) account other than one approved in writing by the JCTT Coordinator, the JCTT Coordinator to give at least one such approval provided:
a.you nominate the email account and that email account is operated and hosted within Australia; and
b.you provide the JCTT Coordinator with sufficient detail to identify the email account you will be accessing or using; and
c.in the case of any second or subsequent email account, you explain why you need the additional account and the explanation is satisfactory to the JCTT Coordinator;
(ix)any computer other than one approved in writing by the JCTT Coordinator, who must give at least one such approval provided:
a.you nominate the computer; and
b.you provide sufficient detail to the JCTT Coordinator to identify the nominated computer which you will be accessing or using; and
c.in the case of any second or subsequent computer, you explain why you need the additional computer and the explanation is satisfactory to the JCTT Coordinator; and
d.the JCTT Coordinator has approved the additional computer in writing.
Control 10
10.You are required to participate in counselling or education relating to your spiritual, emotional and physical wellbeing for a period of at least 60 minutes every week (unless any proposed variation of the amount and frequency of counselling has been agreed in writing by the JCTT Coordinator) with a suitably qualified professional counsellor or religious leader:
(i)nominated by you, provided:
a.that person has agreed to provide you with counselling or education relating to your spiritual, emotional and physical wellbeing; and
b.the JCTT Coordinator has agreed in writing to counselling or education being provided to you by that person; or
(ii)nominated by the JCTT Coordinator, in the event you do not nominate a suitably qualified professional counsellor or religious leader.
You may withdraw your consent to participate in counselling or education at any time, and you may change your counsellor or religious leader at any time to another person nominated by you and agreed in writing by the JCTT Coordinator.
Criminal Code, section 105.5(1)(h)
SCHEDULE 2
As required by section 104.5(1)(h) of the Criminal Code, this Schedule sets out a summary of the grounds on which the Interim Control Order is made.
SUMMARY OF GROUNDS ON WHICH THE INTERIM CONTROL ORDER IS MADE
Mr Causevic was involved in planning a terrorist act which was to occur on or around Anzac Day 2015 in Melbourne, but which was disrupted on 18 April 2015 by the arrest of Sevdet Besim ('Besim') and the detention of Mr Causevic.
Prior to Anzac Day 2015, Mr Causevic engaged in escalating behaviour indicative of an intention to carry out a terrorist act. On 15 April 2015, he was observed engaging in reconnaissance of the Shrine of Remembrance and the Dandenong-Cranbourne RSL, both of which were scheduled to host Anzac Day parades. On the same day he acquired knives from an acquaintance and was observed on different occasions waving a black Shahada flag - which is closely affiliated with extremist Islamic groups, such as the proscribed terrorist organisation Islamic State - including in the direction of a nearby police officer.
During this same time period, Mr Causevic used his mobile phone to view extremist Islamic material, including online videos in support of Islamic State. He also used his phone to photograph a pledge of allegiance to Islamic State.
Mr Causevic and Besim were and continue to be close associates. They were in regular contact throughout March 2015 when Besim discussed plans to carry out a terrorist act on or around Anzac Day with an associate in the United Kingdom. That associate has pleaded guilty in the United Kingdom to the offence of inciting an act of terrorism, the relevant act of terrorism being the intended attack on or around Anzac Day.
Mr Causevic’s escalating behaviour was consistent with the plans discussed with the associate in the United Kingdom. Mr Causevic's reconnaissance of Anzac Day sites occurred on the same day Besim used his phone to research the Anzac Day parade at the Dandenong-Cranbourne RSL and after Besim had used his computer to research the Anzac Day parade at the Shrine of Remembrance.
There are good reasons to believe, on the balance of probabilities, that Mr Causevic was affected and influenced by the example and death of Ahmad Numan Haider ('Haider’) on 23 September 2014. On that day, Haider stabbed two police officers in an unprovoked attack outside Endeavour Hills Police Station, while in possession of a black Shahada flag. He was fatally shot during that attack.
Mr Causevic and Besim were close associates of Haider and had been in his company immediately before his death. Haider's example and death appear to have influenced Mr Causevic and Besim to apply for Australian passports so they could travel to the Middle East to fight for Islamic State. After Mr Causevic and Besim were notified their passport applications were under investigation, they shifted their focus to carrying out a domestic terrorist attack on or around Anzac Day. Mr Causevic's escalating behaviour closely resembled Haider's behaviour immediately before Haider carried out his attack on police.
On 18 April 2015, the Joint Counter Terrorism Team acted to prevent Mr Causevic and Besim carrying out a domestic terrorist attack. Mr Causevic's conduct before his arrest indicated a willingness and capacity to put his intentions into action. While the prosecution of Mr Causevic has not proceeded, whether it can be proved beyond reasonable doubt that Mr Causevic committed an offence does not determine whether an interim control order is necessary to protect the public.
Mr Causevic's behaviour on remand showed that he continues to hold the same extremist ideology that he held before he was apprehended. He has not expressed concern or regret for his actions or for the consequences of those actions. While on remand he continued to associate closely with Besim.
10.Now that Mr Causevic has been released from custody, he is able to act in furtherance of his ideology. In light of the current threat environment, including the heightened risk of “lone wolf” attacks in Australia, and having regard to the ease with which the weapons to carry out such attacks can be obtained, Mr Causevic presents a risk to the safety and welfare of the public. He is vulnerable and impressionable. He holds extremist beliefs and has shown a willingness and capacity to act in furtherance of those beliefs to the detriment of public safety. He has associated with, and continues to associate with, like-minded individuals.
11.The Controls set out in this Interim Control Order will protect the public and substantially assist in preventing a terrorist act.
Redactions
Made with the consent of the parties on 12 July 2016
Part of paragraph 32 has been redacted
Paragraphs 151 to 165 inclusive have been redacted
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