Booth v Granata

Booth v Granata - [2020] FCA 1425 - FCA 2020 case summary — Zoe

[14]

Control 12 12.1. You are prohibited from accessing or using, any mobile telephone device and SIM card other than a single mobile telephone device (permitted mobile phone) at any one time, and your use of such a permitted mobile phone is subject to the following conditions: a. before using a permitted mobile phone for the first time, you must present it to an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) for inspection; b. before using a permitted mobile phone for the first time, you must advise an AFP Superintendent, in writing, of the following information: the International Mobile Equipment Identity number for the permitted mobile phone, the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone, the telecommunication service provider which you will use with the permitted mobile phone, the password for the permitted mobile phone and the phone number to which the permitted mobile phone will be connected; c. once you have advised an AFP Superintendent of the information required by paragraph 12.2(b) above, you must not change, remove, modify or disconnect or cause any other person to change, remove, modify or disconnect on your behalf (including any employee or person acting on behalf of a telecommunications service provider) the SIM card, telecommunication service provider or phone number connected to the permitted mobile phone; d. if you change the password for a permitted mobile phone, you must provide the new password to an AFP Superintendent, or a police officer acting under an AFP Superintendent's direction, if you are requested to do so by an AFP Superintendent or that police officer; e. if at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present a permitted mobile phone for inspection. 12.2. You are prohibited from causing or permitting another person to use or access a permitted mobile phone. 12.3. You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf.

[18]

Control 16 16.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf any of the following websites, applications or computer programs (collectively, platforms), as the case may be: a. WhatsApp b. Viber c. Telegram d. FaceTime e. Facebook Messenger (including Facebook chat) (subject to Control 16.15) f. Snapchat g. KIK h. iCall i. WeTalk j. Lync2013 k. Nimbuzz Messenger l. Whistle Phone m. Talkatone n. Discord o. Google Duo p. MagicApp q. Signal Private Messenger r. Zoiper IAX SIP VOIP Softphone s. Beejive t. Fring u. JaJah v. Line2 w. Talkatone x. Truphone y. Twitter z. Yahoo aa. ICQ ab. Google Talk ac. MSN Messenger ad. AIM ae. Yahoo Messenger af. Packet8 ag. Google Hangouts ah. TikTok ai. Wickr; and aj. Zoom. 16.2. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any gaming applications or software that connects to other users or servers, via the internet or Local Area Network (LAN). 16.3. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, Skype, except for the following purposes, and subject to the requirements in Controls 16.4, 16.5, 16.6, 16.13 and 16.14: a. for the purpose of contacting your legal representatives to obtain legal advice, and/or contacting other professionals who may be required to do an online assessment of you for legal purposes; b. for the purpose of contacting a police officer for the purpose of reporting in accordance with Control 2; c. for the purpose of contacting any other person approved in writing by an AFP Superintendent. 16.4. At least 24 hours prior to accessing or using Skype for the purposes of contacting your legal representative or other person in accordance with Control 16.3, you must provide to an AFP Superintendent: a. the username and password for the Skype account you will be using to make that contact, unless you have previously provided the username and password you will be using to make that contact to an AFP Superintendent in compliance with this Control 16.3 and that username and password have not changed. b. the Skype username of the person you will be contacting, unless you have previously provided the Skype username of the person you will be contacting to an AFP Superintendent in compliance with Control 16.3 and that username has not changed. 16.5. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet based messaging service, including any software, mobile application or hardware. 16.6. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Voice Over Internet Protocol (VOIP) service, including any software, mobile application or hardware, except for the purpose of contacting your father, Alfio Granata, while he is held in a correctional facility by using the VOIP service nominated by that correctional facility. 16.7. Controls 16.1 to 16.6 do not prohibit access to or use of a website which includes an 'instant chat' function that allows a visitor to the website to send messages to, and receive messages from, the website host solely for the purpose of obtaining or providing customer service. 16.8. In addition to the platforms listed in Control 16.1, you are prohibited from accessing or using, or causing any person to access or use on your behalf, any Facebook or Instagram account other than: a. a single Facebook account that has been approved in writing by an AFP Superintended for you to use and access (the permitted Facebook account); b. a single Instagram account that has been approved in writing by an AFP Superintendent for you to use and access (the permitted Instagram account). 16.9. You are prohibited from deleting the permitted Facebook account or deleting any material posted to the permitted Facebook account without approval of the AFP Superintendent in writing. 16.10. You are prohibited from deleting the permitted Instagram account or deleting any material posted to the permitted Instagram account without approval of the AFP Superintendent in writing. 16.11. To seek approval of an AFP Superintendent to use and access a single Facebook and/or single Instagram account you must submit a written request and: a. nominate the Facebook and/or Instagram account; and b. provide any other information requested by, or on behalf of, the AFP Superintendent in relation to, or for the purpose of identifying, the nominated account which you will be accessing or using. 16.12. To seek approval of an AFP Superintendent to delete a permitted Facebook account or permitted Instagram account or delete any material posted to either of these accounts you must submit a written request and: a. nominate the permitted Facebook and/or permitted Instagram account to be deleted; or b. nominate the permitted Facebook and/or permitted Instagram account and identify the material posted to either of these accounts that you wish to delete and the reason why you wish to delete the material. 16.13. You are prohibited from accessing or using Skype, the permitted Facebook account or the permitted Instagram account on any device other than a permitted device approved for your access or use under Controls 12.1, 19.1 or 19.3. 16.14. You are prohibited from accessing or using Skype, the permitted Facebook account or the permitted Instagram account using any internet service other than a permitted internet service approved for your access or use under Control 17.1. 16.15. Subject to Control 16.6, Control 16.1 and Control 16.5 do not prevent you from using or accessing Facebook Messenger (including Facebook chat) for the sole purpose of buying or selling items or services on Facebook Marketplace, provided your use and access occurs: a. On the permitted computer approved for your access and use under Control 19.1; and b. By logging in via the permitted Facebook account approved for your access and use under Control 16.11.

[21]

Control 9 19.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any computer other than a computer that has been supplied by the AFP or approved in writing by an AFP Superintendent for you to access or use (permitted computer) and your use of the permitted computer is subject to the following conditions: a. before using the permitted computer, you must provide the password for the permitted computer to the AFP Superintendent; and b. if you change the password for the permitted computer, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent's direction, if you are requested to do so by the AFP Superintendent or the police officer. 19.2. You are prohibited from allowing any other person to access or use the permitted computer. 19.3. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device other than a single tablet device that has been supplied by the AFP or approved in writing by an AFP Superintendent for you to access or use at any one time (permitted tablet device) and your use of a permitted tablet device is subject to the following conditions: a. before using a permitted tablet device, you must provide the password for a permitted tablet device to the AFP Superintendent; and b. if you change the password for a permitted tablet device, you must provide the new password to the AFP Superintendent, or a police officer acting under the AFP Superintendent's direction, if you are requested to do so by the AFP Superintendent or the police officer. 19.4. To request approval under Control 19.2 you must: a. submit a written request to the AFP Superintendent which nominates a tablet device; and b. provide any information requested by or on behalf of the AFP Superintendent in relation to, or for the purpose of identifying and accessing, a nominated tablet device. 19.5. Subject to Control 19.6, you are prohibited from allowing any other person to access or use the permitted table device. 19.6. Controls 17.2, 19.3 and 19.5 do not prevent your daughter from using the permitted tablet device to access or use a permitted internet service, with or without your assistance, for the sole purpose of completing her schoolwork.

[25]

WHITE J: 1 On 2 June 2020, acting under s 104.4 of the Criminal Code contained in the Schedule to the Criminal Code Act 1995 (Cth), the Court made an Interim Control Order (ICO) in relation to the respondent (Mr Granata): Booth v Granata [2020] FCA 768. The ICO was varied by consent on 24 August 2020. 2 On 2 September 2020, the applicant (Ms Booth) elected, under s 104.12A of the Criminal Code, to confirm the order. The Court fixed today, 25 September 2020, as the date for the confirmation hearing. However, the parties reached agreement that the ICO should be confirmed, albeit with some minor variations. For the reasons which follow, I am satisfied that it is appropriate to confirm the ICO and to give effect to the parties' agreement. 3 Ms Booth relied upon the affidavit she had made on 5 May 2020 and 10 August 2020. In addition, Ms Booth relied, in proof of formal matters, upon the affidavits of Mr Stevens of 9 June 2020 and 24 September 2020. The parties also provided a substantial Statement of Agreed Facts which I received pursuant to s 191 of the Evidence Act 1995 (Cth). 4 Given the parties are agreed that the ICO should be confirmed, it is not necessary to record in the usual detail the factual background. Instead, for part of that background, I will repeat verbatim the summary which I gave in the reasons for the making of the ICO. 5 Between 22 October 2015 and 10 May 2016, Mr Granata, with five others, committed the offence of engaging in conduct in preparation for incursions into a foreign country for the purpose of engaging in hostile activities, contrary to ss 11.2A and 119.4(1) of the Criminal Code. The prosecution case, in brief, was that Mr Granata and his co-offenders had, between 22 October 2015 and 10 May 2016, agreed with each other to engage and had engaged in conduct with a view to entering the Philippines with the intention that one of their number would engage in conduct aimed at overthrowing the government of the southern Philippines by force or violence. The motivation of the group was to bring about a circumstance by which the Southern Philippines would be governed by Islamic law, otherwise known as Sharia law. Mr Granata and his co-offenders were arrested in Far North Queensland on 10 May 2016, having travelled there from Victoria towing a seven-metre boat. Their plan had been to depart Australia on the boat and travel to the Philippines. Unknown to the group, they had been under police surveillance for some time before May 2016. The description of the group's plan by Croucher J in the Victorian Supreme Court when sentencing the offenders suggests that the plan had a hapless quality about it. 6 Mr Granata and all but two of his co-offenders were sentenced for their offences on 22 February 2019. After a reduction for his plea of guilty, Mr Granata was sentenced to a term of imprisonment for four years with a non-parole period of three years. As Mr Granata had been in custody since his arrest on 10 May 2016, the sentence has now been completed, and he was released from prison on 8 May 2020. 7 Ms Booth has been a member of the Australian Federal Police (AFP) for 20 years. She now holds the rank of Commander. During her time with the AFP, Ms Booth has acquired significant knowledge and experience in the investigation of crime generally but with specific reference to counter-terrorism policing. 8 Ms Booth has concluded that Mr Granata poses a risk to the community of committing, supporting or facilitating a terrorist attack in Australia or overseas, or supporting or facilitating the engagement in hostile activity in a foreign country. Ms Booth bases this opinion on her experience and upon a number of matters, including: (a) the knowledge of Islamic State and of Islamist militant groups; (b) her knowledge of threats of domestic terrorism; (c) the prospect, based on previous experience, of recidivism by some of those who have been convicted of terrorism offences; (d) the behaviour of Mr Granata commencing in 2014 and continuing during 2015 which culminated in his arrest on 10 May 2016 and conviction on 22 February 2019; and (e) the continuing influences to which Mr Granata may be subject, including from members of his family and his associates.

[26]

Statutory provisions 9 Section 104.14 of the Criminal Code provides the alternatives available to a Court on a confirmation hearing. It is section 104.14(7), which is relevant presently. It provides: (7) Otherwise, the court may: (a) revoke the order if, at the time of confirming the order, the court is not satisfied as mentioned in paragraph 104.4(1)(c); or (b) confirm and vary the order by removing one or more obligations, prohibitions or restrictions if, at the time of confirming the order, the court is satisfied as mentioned in paragraph 104.4(1)(c) but is not satisfied as mentioned in paragraph 104.4(1)(d); or (c) confirm the order without variation if, at the time of confirming the order, the court is satisfied as mentioned in paragraphs 104.4(1)(c) and (d). Note: If the court confirms the interim control order, the court must make a new order under section 104.16. 10 Section 104.4(1) requires that the Court be satisfied of four matters before making an ICO. It provides: (1) The issuing court may make an order under this section in relation to the person, but only if: (a) the senior AFP member has requested it in accordance with section 104.3; and (b) the court has received and considered such further information (if any) as the court requires; and (c) the court is satisfied on the balance of probabilities: (i) that making the order would substantially assist in preventing a terrorist act; or (ii) that the person has provided training to, received training from or participated in training with a listed terrorist organisation; or (iii) that the person has engaged in a hostile activity in a foreign country; or (iv) that the person has been convicted in Australia of an offence relating to terrorism, a terrorist organisation (within the meaning of subsection 102.1(1)) or a terrorist act (within the meaning of section 100.1); or (v) that the person has been convicted in a foreign country of an offence that is constituted by conduct that, if engaged in in Australia, would constitute a terrorism offence (within the meaning of subsection 3(1) of the Crimes Act 1914); or (vi) that making the order would substantially assist in preventing the provision of support for or the facilitation of a terrorist act; or (vii) that the person has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country; and (d) the court is 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 (ii) preventing the provision of support for or the facilitation of a terrorist act; or (iii) preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. 11 Section 104.4(1)(c) and (d) are pertinent presently. Subsection (1)(c) contains seven internal alternatives. It was common ground that subs (1)(c)(iv) is satisfied presently because Mr Granata has been convicted in Australia of an offence relating to terrorism or a terrorist act. Section 104.4(1)(d) requires that the Court be satisfied, on the balance of probabilities, that each of the obligations, prohibitions and restrictions to be imposed on the person by the control order is reasonably necessary, reasonably appropriate and adapted for the purpose of achieving at least one of the stated objects.

[27]

Consideration 12 The effect of s 104.14(1A)(c) of the Criminal Code is that the Court must be satisfied of certain matters commonly referred to as the "formalities", namely, that: (a) the ICO was served on Mr Granata personally by an AFP member; (b) the AFP member informed Mr Granata of the matters specified in s 104.12(1)(b); (c) the AFP member ensured that Mr Granata understood the information provided to him; (d) an AFP member has served Mr Granata personally with a copy of Ms Booth's election to confirm the ICO; and (e) a copy of the documents provided to the Minister under s 104.2(3)(aa) and to the Court under s 104.3(d) has been provided to Mr Granata. 13 The affidavits of Mr Stevens indicate compliance with the first four of these formalities. The first affidavit of Ms Booth indicates compliance with the fifth of the formalities. 14 As the Court was previously satisfied that an ICO was appropriate, and was satisfied that each of the obligations, prohibitions and restrictions contained in the then proposed ICO were reasonably necessary and reasonably appropriate and adapted for a s 104.4(1)(d) purpose, and given that the parties have agreed that the ICO should be confirmed (subject to some minor variations), and given that each party has been represented by counsel, I do not consider it necessary to state in detail the reason why I am satisfied about the s 104.4(1)(c) and (d) elements. For the same reasons, it is not necessary to discuss each of the controls and limitations in detail. 15 The Court was not provided with evidence of Mr Granata's behaviour in the period between his release from prison on 8 May 2020 and the making of the ICO on 2 June 2020, let alone about matters which may give rise to concerns about his conduct. Nor has the Court been provided with evidence of Mr Granata's behaviour in the period of over three months since the making of the ICO. Nevertheless, Ms Booth's affidavits and the statement of agreed facts satisfies me that each of the obligations, prohibitions and restrictions sought to be confirmed in the ICO is reasonably necessary and reasonably appropriate and adapted for the purposes specified in s 104.4(1)(d)(i), (ii) and (iii) of the Criminal Code. I will, however, revise control so that it is consistent with the contemporaneous circumstances and make some formatting and grammatical changes. I will vary Controls 12.1(a) and (b) so as to make it plain that the obligations imposed on Mr Granata, by those controls, relate to his first use of the permitted mobile phone. 16 Control 16 will be varied so as to remove the prohibitions on Mr Granata accessing Facebook and Instagram. Otherwise, I am satisfied that the controls in the ICO remain appropriate, although I will make some modifications of a formatting or grammatical kind in the expression of those controls. 17 In summary, I am satisfied that it is appropriate to confirm the ICO with the variations upon which the parties have agreed and with the further minor variations which I consider appropriate. 18 The confirmed control order is to remain in force until and including 2 June 2021. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.

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Judgment (27 paragraphs)

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Legislation Cited (6)

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