Jabbour v Thomas - [2006] FMCA 1286

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JABBOUR v THOMAS [2006] FMCA 1286

CONTROL ORDERS – Criminal Code – application for interim control order – preventing terrorist act – training from terrorist organisation – obligations, prohibitions and restrictions – reasonably appropriate and adapted – refusal of certain restrictions – interim control order made.

Criminal Code Act 1995, s.3
Criminal Code, ss.100.1, 104.2, 104.3, 104.4, 104.5
Evidence Act 1995
Charter of the United Nations (Terrorism and Dealings with Assets)
Regulations 2002, Part 4

R v Thomas [2006] VSCA 165

Applicant: RAMZI JABBOUR

Respondent: JOSEPH TERRENCE THOMAS

File Number: CAG47 of 2006

Judgment of: Mowbray FM

Hearing date: 26 August 2006

Delivered at: Canberra

Delivered on: 27 August 2006
REPRESENTATION

Counsel for the Applicant: Mr H Burmester QC, Mr A Berger

Solicitors for the Applicant: Australian Government Solicitor
ORDERS
(1)Pursuant to section 104.4 of the Criminal Code an interim control order be made in relation to Joseph Terrence Thomas in the terms at attachment 1.
(2)Service of the interim control order be affected by personally serving a copy of the sealed orders of the Court as soon as possible, provided that an original sealed set of orders is served within 48 hours.
(3)
Any confirmation hearing for the interim control order be listed for

1 September 2006 at 9.30am preceded by a directions hearing on

31 August 2006 at 9.30am.

Attachment 1

No.

Criminal Code (Cth), sub-section 104.4
INTERIM CONTROL ORDER
Name of Controlled Person:     Joseph Terrence Thomas
Date of Birth:  19 May 1973
Under the powers conferred by sub-section 104.4 of the Criminal Code (Cth) this interim control order has been made against you because:
a.An AFP member holding the rank of Superintendent or above, namely Manager Counter Terrorism Domestic, has requested it in accordance with sub-section 104.3 of the Criminal Code; and
b.The Court has received and considered the information put before the Court by the applicant; and
c.The Court is satisfied on the balance of probabilities that:
a.   making the order would substantially assist in preventing a terrorist act; and
b.   you have received training from a listed terrorist organisation; and
d.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 imposed on you under sub-section 104.5(3) of the Criminal Code are set out in Schedule 1 to this Order - see attached.
A summary of the grounds on which this Order is made is set out in Schedule 2 to this Order – see attached.
You are required to meet the obligations set out in the Schedule to the interim control order. By virtue of sub-section 104.27 (read with sub-section 100(1) of the Criminal Code) the penalty for contravening any of these obligations is imprisonment for 5 years.
You may attend the Federal Magistrates Court which is located…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jabbour v Thomas

Details

AGLC: Jabbour v Thomas [2006] FMCA 1286
Case: [2006] FMCA 1286
Decision Date: 27 August 2006

CaseChat Overview and Summary

The Federal Magistrates Court was asked to decide whether an interim control order should be made against Joseph Terrence Thomas. The Federal Magistrate was satisfied that the applicant, an Australian Federal Police member, had made the order request in accordance with the Criminal Code. The court considered the information put before it and was satisfied on the balance of probabilities that making the order would substantially assist in preventing a terrorist act and that Thomas had received training from a listed terrorist organisation. The court also found that each of the obligations, prohibitions, and restrictions to be imposed on Thomas by the order were reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act. The court made an interim control order in relation to Thomas, imposing a number of obligations on him, and prohibiting him from carrying out a range of activities. The interim control order is to be confirmed (with or without variation), declared void or revoked at a hearing on 1 September 2006. The interim control order is to be in force for 12 months if confirmed.

Orders

Orders of the court

(1) Pursuant to section 104.4 of the Criminal Code an interim control order be made in relation to Joseph Terrence Thomas in the terms at attachment 1.

(2) Service of the interim control order be affected by personally serving a copy of the sealed orders of the Court as soon as possible, provided that an original sealed set of orders is served within 48 hours.

(3)

Any confirmation hearing for the interim control order be listed for

1 September 2006 at 9.30am preceded by a directions hearing on

31 August 2006 at 9.30am.

Attachment 1

No.

Criminal Code (Cth), sub-section 104.4

INTERIM CONTROL ORDER

Name of Controlled Person: Joseph Terrence Thomas

Date of Birth: 19 May 1973

Under the powers conferred by sub-section 104.4 of the Criminal Code (Cth) this interim control order has been made against you because:

a. An AFP member holding the rank of Superintendent or above, namely Manager Counter Terrorism Domestic, has requested it in accordance with sub-section 104.3 of the Criminal Code; and

b. The Court has received and considered the information put before the Court by the applicant; and

c. The Court is satisfied on the balance of probabilities that:

a. making the order would substantially assist in preventing a terrorist act; and

b. you have received training from a listed terrorist organisation; and

d. 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 imposed on you under sub-section 104.5(3) of the Criminal Code are set out in Schedule 1 to this Order - see attached.

A summary of the grounds on which this Order is made is set out in Schedule 2 to this Order – see attached.

You are required to meet the obligations set out in the Schedule to the interim control order. By virtue of sub-section 104.27 (read with sub-section 100(1) of the Criminal Code) the penalty for contravening any of these obligations is imprisonment for 5 years.

You may attend the Federal Magistrates Court which is located at Nigel Bowen Commonwealth Law Courts Building, Canberra, on Friday 1 September 2006 at 9.30 am, preceded by a directions hearing on 31 August 2006 at 9.30 am at that same location, for the court to:

(ii) confirm (with or without the variation) this interim control order;

(iii) declare this interim control order to be void; or

(iv) revoke the interim control order.

This interim control order does not begin to be in force until it has been personally served on you.

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 AFP Melbourne Office, 383 LaTrobe Street Melbourne Victoria in order to obtain a copy of this interim control order.

Date of interim control order: 27 August 2006

…………………………

Federal Magistrate Mowbray

Affix Court Seal

(Criminal Code (Cwlth), sub-section 104.5(3))

SCHEDULE 1

This schedule sets out the obligations imposed on Joseph Terrence Thomas pursuant to sub-section 104.5(3) of the Criminal Code:

OBLIGATIONS

The following obligations form part of the interim control order and are imposed on you by virtue of sub-section 104.5(3) of the Criminal Code:

Upon personal service of the interim control order and thereafter for the duration of this interim control order:-

You are required to remain at your current place of residence in Williamstown, Victoria, between midnight and 5.00am each day, unless you notify the Coordinator of the Australian Federal Police Counter Terrorist Team, Melbourne Office, 383 Latrobe Street, Melbourne (the AFP CT Coordinator) in writing of another address that you will be residing at between these times.

and

You are required to report to the following specified persons at the following specified times and places:

a. a member of Victoria Police;

b. every Monday, Wednesday and Saturday, at any time between the hours of 9am and 9pm;

c. at any of the following Victoria Police premises (the ‘specified premises’):

(i) Werribee Police Station;

(ii) Footscray Police Station; or

(iii) Sunshine Police Station

d. or any other person, time and/or place agreed in writing by the AFP CT Coordinator.

and

You are required to allow impressions of your fingerprints to be taken by the Victoria Police via the ‘Fingerprint Live Scan’ unit for the purposes of ensuring compliance with paragraph 2 of this interim control order:

a. within 24 hours following the issuing of this interim control order; and

b. where required by a member of Victoria Police, on any occasion you report at the specified premises.

and

You are prohibited from leaving Australia except with the prior written permission of the AFP CT Coordinator.

and

You are prohibited from carrying out the following specified activities:

a. acquiring, taking possession of, producing, accessing or supplying documentation (including in electronic form) regarding:

a. the manufacture or detonation of explosives;

b. weapons; and/or

c. combat skills;

b. manufacturing, acquiring, taking possession of or using or attempting to manufacture, acquire, possess or use any commercial, military or home made and/or improvised explosives or explosive accessories, initiation systems or firing devices;

c. subject to section 104.5(5) of the Criminal Code, communicating to any person, whether directly or indirectly (including via internet chat rooms, websites, media interviews, publications and group gatherings) in relation to:

– methodology, tactics and other knowledge connected with, or likely to facilitate, terrorist acts, including explosives, weapons and/or combat skills

– names or contact details of persons you know to be associated with a listed terrorist organisation (see Schedule 3).

and

You are prohibited from communicating or associating with:

a. up to 50 individuals listed by the Department of Foreign Affairs and Trade pursuant to Part 4 of the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth), as notified to you in writing by the AFP CT Coordinator, with such prohibition to take effect from notification; and

b. any individual that you know to be a member of a listed / specified terrorist organisation (see Schedule 3).

and

Following the expiration of 48 hours after this control order is served upon you, you are prohibited from accessing or using the following specified forms of telecommunications or other technology:

a. any mobile telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one mobile telephone service is nominated in total and sufficient details to identify the service to be used are provided;

b. a telephone service card, SIM card or account, incorporating a credit or “top up” facility that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one telephone service card, SIM card or account, incorporating a credit or “top up” facility is nominated in total and sufficient details to identify the service to be used are provided;

c. any fixed or landline telephone service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one fixed or landline telephone service is nominated in total and sufficient details to identify the service to be used are provided or is required in the case of an emergency;

d. any public telephone except in the case of an emergency;

e. any satellite telephone service;

f. any Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one Voice Over Internet Protocol (VOIP) service including any software or hardware that will facilitate a VOIP service is nominated in total and sufficient details to identify the service to be used are provided;

g. any internet service provider account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one internet service provider account is nominated in total and sufficient details to identify the account to be used are provided;

h. any electronic mail (e-mail) account that has not been approved in writing by the AFP CT Coordinator with such approval to be given provided only one electronic mail (e-mail) account is nominated in total and sufficient details to identify the account to be used are provided.

and

You are prohibited from having in your possession, custody or control or using any firearm or ammunition except during the 48 hours after this control order is served upon you during which you must arrange for the surrender to police of any firearm or ammunition in your possession, custody or control.

…………………………

Federal Magistrate Mowbray

Affix Court Seal

SCHEDULE 2:

SUMMARY OF THE GROUNDS ON WHICH THIS ORDER IS MADE

Mr Thomas has admitted that he trained with Al Qa’ida in 2001. Al Qa’ida is a listed terrorist organisation under section 4A of the Criminal Code Regulations 2002, made under the Criminal Code Act 1995. Mr Thomas also admitted that while at the Al Qa’ida training camp he undertook weapons training, including the use of explosives and learned how to assemble and shoot various automatic weapons.

There are good reasons to believe that given Mr Thomas has received training with Al Qa’ida he is now an available resource that can be tapped into to commit terrorist acts on behalf of Al Qa’ida or related terrorist cells. Training has provided Mr Thomas with the capability to execute or assist with the execution directly or indirectly of any terrorist acts.

Mr Thomas is vulnerable. Mr Thomas may be susceptible to the views and beliefs of persons who will nurture him during his reintegration into the community. Mr Thomas’s links with extremists such as Abu Bakir Bashir, some of which are through his wife, may expose and exploit Mr Thomas’s vulnerabilities.

Furthermore, the mere fact that Mr Thomas has trained in Al Qai’da training camps, and associated with senior Al Qai’da figures, in Afghanistan is attractive to aspirant extremists who will seek out his skills and experiences to guide them in achieving their potentially extremist objectives.

The controls set out in this interim control order statement will protect the public and substantially assist in preventing a terrorist act. Without these controls, Mr Thomas’s knowledge and skills could provide a potential resource for the planning or preparation of a terrorist act.

SCHEDULE 3:

LISTED TERRORIST ORGANISATIONS

4A Terrorist organisations – Al Qa’ida

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Al Qa’ida/Islamic Army is specified.

(2) For subregulation (1), Al Qa’ida/Islamic Army is also known by the following names:

(a) ‘The Base’;

(b) Al Qaida;

(d) International Front for Fighting Jews and Crusaders;

(e) Islamic Army for the Liberation of Holy Sites;

(f) Islamic Salvation Foundation;

(g) The Group for the Preservation of the Holy Sites;

(h) The Islamic Army for the Liberation of the Holy Places;

(i) The World Islamic Front for Jihad Against Jews and Crusaders;

(j) Usama Bin Laden Network;

(k) Usama Bin Laden Organization;

(l) International Islamic Front Against Jews and Christians;

(m) Qa’idat Al-Jihad.

4B Terrorist organisation – Jemaah Islamiyah

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jemaah Islamiyah (the network in southeast Asia, founded by the late Abdullah Sungkar) is specified.

(2) For subregulation (1), Jemaah Islamiyah is also known by the following names:

(a) Jema’ah Islamiyah;

(b) Jemaah Islamiya;

(d) Jamaah Islamiyah;

(e) Jama’ah Islamiyah.

4C Terrorist organisations – Abu Sayyaf Group

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Abu Sayyaf Group is specified.

(2) For subregulation (1), Abu Sayyaf Group is also known by the following names:

(a) Abu Sayyaf Group (ASG);

(b) Al Harakat Al Islamiyya (AHAI);

(d) Al-Harakatul-Islamia;

(e) Al Harakat Al Aslamiya;

(f) Abou Sayaf Armed Band (ASAB);

(g) Abu Sayaff Group;

(h) Abou Sayyef Group and Mujahideen Commando Freedom Fighters (MCFF).

4D Terrorist organisations – Jamiat ul-Ansar (JuA)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jamiat ul-Ansar (JuA) is specified.

(2) For subregulation (1), Jamiat ul-Ansar (JuA) is also known by the following names:

(a) Harakat ul-Mujahideen;

(b) HuM;

(d) Al-Hadid;

(e) Al-Hadith;

(f) Harakat-ul-Ansar;

(g) HuA;

(h) Harakat ul-Mujahidin/HuM.

4E Terrorist organisations – Armed Islamic Group

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Armed Islamic Group is specified.

(2) For subregulation (1), Armed Islamic Group is also known by the following names:

(a) Al Jamm’ah Al-Islamiah Al-Musallah;

(b) GIA;

(d) Groupe Islamique Armé.

4F Terrorist organisations – Salafist Group for Call and Combat/GSPC

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Salafist Group for Call and Combat/GSPC is specified.

(2) For subregulation (1), the Salafist Group for Call and Combat/ GSPC is also known as Le Groupe Salafiste Pour La Prediction et le Combat.

4G Terrorist organisations – Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn is specified.

(2) For subregulation (1), Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn is also known by the following names:

(a) Tanzim Qa’idat al-Jihad fi Bilad al‑Rafidayn (TQJBR);

(b) TQJBR;

(d) al-Tawhid;

(e) Jama’at al-Tawhid wa’al-Jihad;

(f) Al-Tawhid and al-Jihad;

(g) The Monotheism and Jihad Group;

(h) Qaida of the Jihad in the Land of the Two Rivers;

(i) Al-Qa’ida of Jihad in the Land of the Two Rivers;

(j) Al-Qa’ida of Jihad Organization in the Land of the Two Rivers;

(k) The Organisation of Jihad’s Base in the Country of the Two Rivers;

(l) The Organisation Base of Jihad/Country of the Two Rivers;

(m) The Organisation Base of Jihad/Mesopotamia;

(n) Tanzeem Qa’ida al-Jihad/Bilad al Raafidaini;

(o) Kateab al-Tawhid;

(p) Brigades of Tawhid;

(q) Unity and Jihad Group;

(r) Unity and Holy Struggle;

(s) Unity and Holy War.

4H Terrorist organisations – Ansar al-Islam

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Ansar al-Islam is specified.

(2) For subregulation (1), Ansar al-Islam is also known by the following names:

(a) Partisans of Islam;

(b) Supporters of Islam;

(d) Ansar al Sunna;

(e) Jaish Ansar al-Sunna;

(f) Ansar al-Sunna Army;

(g) Army of Ansar al-Sunn.

4I Terrorist organisations – Asbat al-Ansar

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Asbat al-Ansar is specified.

(2) For subregulation (1), Asbat al-Ansar is also known by the following names:

(a) Usbat al-Ansar;

(b) Osbat al-Ansar.

4J Terrorist organisations – Islamic Movement of Uzbekistan

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Islamic Movement of Uzbekistan is specified.

(2) For subregulation (1), Islamic Movement of Uzbekistan is also known by the following names:

(a) IMU;

(b) Islamic Party of Turkestan;

4K Terrorist organisations – Jaish-e-Mohammad

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Jaish-e-Mohammad is specified.

(2) For subregulation (1), Jaish-e-Mohammad is also known by the following names:

(a) Jaish-i-Mohammad;

(b) Jesh-e-Mohammadi;

(d) Tehrik-al-Furgan;

(e) Tehrik-al-Furqaan;

(f) Khuddam-ul-Islam;

(g) Army of Mohammad.

4L Terrorist organisations – Lashkar-e Jhangvi (LeJ)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Lashkar-e Jhangvi (LeJ) is specified.

(2) For subregulation (1), Lashkar-e Jhangvi (LeJ) is also known by the following names:

(a) Lashkar-e Jhangvi;

(b) Lashkar e Jhangvi;

(d) Lashkar-e-Jhangvie;

(e) Lashkar-e-Jhangwi;

(f) Lashkar-e-Jhanvi;

(g) Laskar e Jahangvi;

(h) Lashkar-i-Jangvi;

(i) Lashkar-i-Jhangvi;

(j) Lashkar-i-Jhangwi;

(k) Lashkar Jangvi;

(l) Lashkar Jhangvi;

(m) Lashkare Jhangvi;

(n) Jhangvi Army.

4M Terrorist organisations – Egyptian Islamic Jihad

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Egyptian Islamic Jihad is specified.

(2) For subregulation (1), Egyptian Islamic Jihad is also known by the following names:

(a) al-Jihad;

(b) Jihad Group;

(d) Al-Jihad al-Islami;

(e) New Jihad Group;

(f) Qaeda al-Jihad;

(g) Talaa’al al-Fateh;

(h) Vanguards of Conquest;

(i) al-Takfir;

(j) World Justice Group;

(k) International Justice Group;

(l) Islamic Group.

4N Terrorist organisations – Islamic Army of Aden (IAA)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Islamic Army of Aden (IAA) is specified.

(2) For subregulation (1), Islamic Army of Aden (IAA) is also known by the following names:

(a) Aden Abyan Islamic Army (AAIA);

(b) Islamic Army of Aden Abayan.

4Q Terrorist organisations – Hizballah’s External Security Organisation (ESO)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Hizballah’s External Security Organisation (ESO) is specified.

(2) For subregulation (1), Hizballah’s External Security Organisation (ESO) is also known as Islamic Jihad Organisation.

4T Terrorist organisations – Palestinian Islamic Jihad (PIJ)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Palestinian Islamic Jihad (PIJ) is specified.

(2) For subregulation (1), Palestinian Islamic Jihad (PIJ) is also known by the following names:

(a) Islamic Jihad Palestine (IJP);

(b) Islamic Jihad – Palestine Faction;

4U Terrorist organisations – HAMAS’ Izz al-Din al‑Qassam Brigades

For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as HAMAS’ Izz al-Din al-Qassam Brigades is specified.

4V Terrorist organisations – Lashkar-e-Tayyiba (LeT)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Lashkar-e-Tayyiba (LeT) is specified.

(2) For subregulation (1), Lashkar-e-Tayyiba (LeT) is also known by the following names:

(a) Lashkar-e-Toiba;

(b) Lashkar-e-Taiba;

(d) Paasban-e-Kashmir;

(e) Paasban-i-Ahle-Hadith;

(f) Jamaat-ud-Dawa.

4W Terrorist organisations – Kurdistan Workers Party (PKK)

(1) For paragraph (b) of the definition of terrorist organisation in subsection 102.1 (1) of the Code, the organisation known as Kurdistan Workers Party (PKK) is specified.

(2) For subregulation (1), Kurdistan Workers Party (PKK) is also known by the following names:

(a) Peoples Congress of Kurdistan;

(b) Kongra Gel;

(d) Partiya Karkeren Kurdistan;

(e) New PKK;

(f) Freedom and Democratic Congress of Kurdistan;

(g) Kurdistan Freedom and Democracy Congress;

(h) KADEK;

(i) Kurdistan Halk Kongresi;

(j) KHK;

(k) Kurdistan Labor Party;

(l) Kurdistan Peoples Congress;

(m) Kurdish Freedom Falcons;

(n) Kurdish Liberation Hawks;

(o) Kurdistan Ozgurluk Sahinleri;

(p) Teyrbazên Azadiya Kurdistan;

(q) TAK.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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