Booth v Thorne

ANASTASSIOU J: 1 Before the court is an application for the confirmation of an interim control order made in respect of the respondent pursuant to s 104.4 of the Criminal Code Act 1995 (Cth). I made the interim control order on 6 March 2020 and published reasons: Booth v Thorne [2020] FCA 445. The interim control order has since been varied on several occasions by consent, to accommodate the changing circumstances pertaining to the respondent. The terms of the proposed confirmed control order have been agreed between the parties, though the respondent neither consented nor opposed its making. 2 I recently published reasons in Booth v Kaya (No 2) [2020] FCA 1119, an application identical in form to the present. Booth v Kaya (No 2) concerned an application regarding one of the present respondent's co-conspirators: see generally, R v Cerantonio & Ors [2019] VSC 284. The Kaya proceeding was case managed alongside the present proceeding and they were to be heard jointly, however, the parties' agreement in both matters no longer necessitates a trial. These reasons substantially replicate my reasons in Booth v Kaya (No 2). 3 As I set out in Booth v Kaya (No 2), before an interim control order may be confirmed, the court must be satisfied that the requirements of ss 104.12 and 104.12A of the Criminal Code have been complied with as provided for by s 104.14(1A). I am satisfied that these requirements have been satisfied. 4 In particular, in satisfaction of s 104.12 an Australian Federal Police (AFP) member served the interim control order personally on the respondent, at the same time the AFP member informed the respondent of the matters set out in s 104.12(1)(b) and the respondent indicated that he understood those matters. In satisfaction of s 104.12A the applicant elected to confirm the control order on 17 June 2020. An AFP member has served personally on the respondent, at least 48 hours prior to this confirmation hearing, notification of the applicant's election to confirm the interim control order. 5 At the confirmation hearing the applicant relied on all evidence relied on at the interim control hearing, further evidence filed in the court book dated 18 June 2020, the statement of agreed facts filed on 12 August 2020, and the affidavits of Frank Dumic dated 23 June 2020, Dr Clarke Jones dated 16 July 2020, Steve Banks dated 24 July 2020 and Robert Garner dated 26 July and 13 August 2020. Those documents and evidence enable the respondent, who is represented by experienced counsel, to understand and respond to the facts, matters and circumstances which form the basis of the confirmation of the order. No objection was taken to the tender of that evidence. I have treated the evidence referred to as tendered in support of this application. 6 For the reasons referred to above, I am satisfied that the interim control order should be confirmed. Accordingly, I will make the form of the order agreed between the parties. 7 For completeness I note that for obvious reasons of privacy and security I have redacted from the publically published form of the orders the names of certain people with whom the respondent is able to have particular forms of contact, and the respondent's address. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

Associate: Dated: 19 August 2020 ANNEXURE A

1. Control 1 1.1. You are required to remain at in the State of Western Australia or other such premises: a. nominated by you within 24 hours from the time that this Interim Control Order comes into force; and b. approved in writing by an AFP Superintendent (the specified premises), between the hours of 1:00 am local time and 6:00 am local time each day (the curfew period) from the day on which this Interim Control Order comes into force until the day that it ceases to be in force. Unless: c. there was an emergency which required you to leave the specified premise during the curfew period; and d. you contact the AFP Superintendent as soon as practicable to explain the nature of the emergency which required you to leave the specified premises during the curfew period. 1.2. In relation to Control 1.1., you are excepted from remaining at the specified premises when visiting Melbourne in accordance with Control 3.1.g and staying at the premises notified on the following dates and at the following location (the interim premises):. When visiting Melbourne in accordance with Control 3.1.g you are required to remain at the interim premises during the curfew period. a. 7 - 13 March 2020 at in the State of Victoria. 1.3. You must present and identify yourself at the specified premises and at the interim premises during the curfew period upon request by a police officer.
2. Control 2 2.1. You are required to report to a police officer every Monday and Thursday between 7am and 107pm at , Western Australia. 2.2. When visiting Melbourne in accordance with Control 3.1.g, you are required to report to a police officer at a police station nominated by the AFP Superintendent every Monday you are in Melbourne, between 7am and 10pm.
3. Control 3 3.1. You are prohibited from being at any of the following areas a. within the exclusion zone set out in Annexure 1 (except to attend DFO Perth located at 11 High Street, Perth Airport, WA 6105 and Costco Wholesale located at 142 Dunreath Drive, Perth Airport, WA 6105) at Perth International Airport save and except in accordance with Control gon 13 March 2020; b. within the exclusion zone set out in Annexure 2 at Fremantle Passenger Terminal; c. within 1 km of any Australian airport (besides Perth International Airport which is addressed in Control 3.1.a and besides Melbourne Tullamarine Airport on 13 March 2020) which has an international point of departure, or from which a person can board or charter a flight for an international destination save and except in accordance with Control g; d. within 1 km of any Australian port (besides Fremantle Passenger Terminal which is addressed in Controls 3.1.b) that has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; e. inside, or in the grounds of, any prison or correctional facility unless you are incarcerated there; f. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or voluntarily associating; g. any place in Australia outside the state of Western Australia save and except in accordance with Control 3.2 during the period 7 March 2020 until 13 March 2020. 3.2. Notwithstanding Control 3.1, you are permitted to travel to Melbourne to visit your son for a period of up to 14 days on condition that you travel by air and provide the following information to the AFP Superintendent at least 21 days before departing Perth: a. the dates on which you will travel; b. a copy of your flight booking and payment receipt; c. the address at which you will stay while in Melbourne. 3.3. Notwithstanding Control 3.1.g, Control 3.1.f continues to apply at all times when you are in Melbourne. 3.4. When visiting Melbourne in accordance with Control 3.1.g, you are prohibited from attending Victoria.
4. Control 4 4.1. You are prohibited from leaving Australia.
5. Control 5 5.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, produce, store or distribute documents (including documents in electronic form) or electronic media, which relate to any of the following: a. explosives, explosive devices, initiation systems or firing devices; b. firearms, ammunition or knives; c. anti-surveillance or counter surveillance. unless that material is: d. published by a 'constituent body' of the Australian Press Council; e. broadcast on Australian free to air television; f. broadcast on Australian pay television; g. shown in a commercial movie cinema; h. broadcast on one of the following streaming services: Al Jazeera; Netflix; STAN; ABC iView; or SBS on demand'; or i. served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
6. Control 6 6.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: accessing, acquiring, possessing, producing, storing or distributing documents (including documents in electronic form) or electronic media, or attempting to access, acquire, possess, produce, store or distribute documents (including documents in electronic form) or electronic media, depicting or describing any: a. execution; b. beheading; c. suicide attack; d. bombing; e. terrorist attack; f. propaganda and promotional material for a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or g. activities of, or associated with, a terrorist organisation within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth), unless that material is: h. published by a 'constituent body' of the Australian Press Council; or i. broadcast on Australian free to air television; j. on Australian pay television; k. shown in a commercial movie cinema; l. on one of the following streaming services: Al Jazeera; Netflix; STAN; ABC iView; or SBS on demand; or m. served on you or your legal representatives by or on behalf of a senior AFP member in the Federal Court proceeding relating to this interim control order, including any appeal from such proceeding, and is accessed, possessed, and stored solely for the purposes of proceedings in the Federal Court relating to this interim control order, including any appeal from such proceeding.
7. Control 7 7.1. You are prohibited from the following specified activities (including in respect of your work occupation), namely: producing or distributing documents (including documents in electronic form) or electronic media relating to: a. explosives, explosive devices, initiation systems or firing devices; b. firearms, ammunition or knives; c. anti-surveillance or counter surveillance; d. execution; e. beheading; f. suicide attack; g. bombing; h. terrorist attack; i. Islamic State; j. propaganda and promotional material for a 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); k. activities of, or associated with, a 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth).
8. Control 8 8.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: purchasing, renting or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne.
9. Control 9 9.1. You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: undertaking paid work without first notifying the AFP Superintendent in writing. 9.2. In notifying the AFP Superintendent, you must submit a written notice to the AFP Superintendent which includes information about the proposed work, including details of the person for whom you will be undertaking the work (eg the employer), including their name and place of business, and the nature of the work that will be undertaken.
10. Control 10 10.1. You are prohibited from possessing or using, or causing any person to act on your behalf to possess or use, any of these specified articles or substances, namely: a. firearms or ammunition within the meaning of s 4 of the Firearms Act 1973 (WA); b. a 'prohibited weapon' within the meaning of s 3 of the Weapons Act 1999 (WA); c. any quantity of petrol exceeding 4 litres that is not contained in the petrol tank of a vehicle that you have purchased, rented or driven in compliance with Control 8.1; d. any quantity of any chemical which is not consistent with reasonable domestic use; e. an article or device, not being a firearm, capable of discharging by any means: i. any irritant matter in liquid, powder, gas, chemical form or any dense smoke; or ii. any substance capable of causing bodily harm; except for reasonable domestic use; f. a detonator; g. a fuse capable of use with an explosive or a detonator; h. a knife, in a public place, without reasonable excuse; i. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
11. Control 11 11.1. You are prohibited from communicating or voluntarily associating with: a. Apart from , any person incarcerated in any correctional facility, unless you are yourself incarcerated in that correctional facility; b. any person located in Turkey, Iraq, Syria or the Philippines; c. any of the following specified individuals:

• except for the purpose of discussing your child or facilitating contact with your child;
• except for the purpose of discussing your child or facilitating contact with your child;
• Robert CERANTONIO (Date of birth: 28 January 1985);
• Paul DACRE (Date of birth: 6 July 1985);
• Antonino GRANATA (Date of birth: 10 November 1990);
• Kadir KAYA (Date of birth: 13 July 1994);
• Murat KAYA (Date of birth: 14 February 1991);

c 12. Control 12 12.1. You are prohibited from accessing or using, any mobile telephone device and SIM card other than the one mobile telephone device and SIM card provided by the AFP (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions: a. prior to using the permitted mobile phone an AFP Superintendent in writing will provide you with 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; b. at any time an AFP Superintendent (or a police officer specified in writing by an AFP Superintendent) requests, you must present the permitted mobile phone for inspection; c. 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 provided by the AFP, telecommunication service provider or phone number connected to the permitted mobile phone; and d. if you change the password for the 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'. 12.2. You are prohibited from causing another person to use or access the permitted mobile phone. 12.3. You are prohibited from causing or permitting another person to use or access any mobile telephone device (a non-permitted telephone) on your behalf except to make a specified call. 12.4. Upon causing or permitting another person to use or access a non-permitted telephone to make a specified call in accordance with Control 12.3, as soon as practicable, you must notify the AFP Superintendent and provide the following: a. the nature of the specified call which required you to cause or permit another person to use or access on your behalf, the non-permitted telephone. b. sufficient detail (including time, date, person, phone number), and any information requested by the AFP Superintendent, for the purpose of identifying the non-permitted telephone that you caused or permitted another person to use or access on your behalf, and the details of the party that was contacted. 13. Control 13 13.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any fixed or landline telephone service other than the service installed at and/or any one service that has been approved in writing by an AFP Superintendent for you to access or use. 13.2. To seek approval, you must: a. submit a written request to an AFP Superintendent which nominates the fixed or landline telephone service; and b. provide an AFP Superintendent with sufficient detail and any information requested by an AFP Superintendent for the purpose of identifying the fixed or landline telephone service that you will be accessing or using. 14. Control 14 14.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any public telephone except to make a specified call or in the case of an emergency, provided that you contact an AFP Superintendent as soon as possible practicable after accessing or using such a public telephone and: a. provide sufficient detail to, and any information requested by, an AFP Superintendent to identify the public telephone that you accessed or used, and the date, time and phone number called; and b. you explain the nature of the emergency or specified call which required you to access or use, or cause another person to access or use on your behalf, that public telephone. 15. Control 15 15.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any satellite telephone service. 16. 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. Facebook e. Facebook Messenger f. Instagram g. Snapchat h. KIK i. iCall j. WeTalk k. Lync2013 l. Nimbuzz Messenger m. Whistle Phone n. Talkatone o. Discord p. Google Duo q. MagicApp r. Signal Private Messenger s. Zoiper IAX SIP VOIP Softphone t. Beejive u. Fring v. JaJah w. Line2 x. Talkatone y. Truphone z. Twitter aa. Yahoo ab. ICQ ac. Google Talk ad. MSN Messenger ae. AIM af. Yahoo Messenger ag. Packet8 ah. Google Hangouts. 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, FaceTime or Skype, except for the following purposes, and subject to the requirements in Controls 16.3 and 16.4 : a. you may access or use FaceTime or Skype for the purposes of contacting your child. b. you may access or use FaceTime or Skype 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. 16.3. You may only use the phone number associated with the permitted mobile phone to access or use FaceTime for the purposes of contacting your child, your legal representative or other professional in accordance with Control 16.2. 16.4. At least 24 hours prior to accessing or using Skype for the purposes of contacting your child, your legal representative or other professional in accordance with Control 16.2, 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 16.2 and that username and password have not changed. b. the Skype username of the party you will be contacting, unless you have previously provided the Skype username of the party you will be contacting to an AFP Superintendent in compliance with this Control 16.2 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 gaming applications or gaming software that connects to other users or servers, via the internet or Local Area Network (LAN). 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. 16.7. 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. 16.8. Controls 16.1 to 16.7 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. 16.9. Controls 16.1 to 16.8 do not prohibit you from accessing or using Microsoft Teams for the purpose of participating in any hearing in the Federal Court of Australia proceeding VID 126 of 2020. 16.10. Notwithstanding the prohibitions in this Control, you are permitted to use the Zoom platform and any required university examination or assessment software such as Examsoft, but only for the purposes of engaging in lectures, tutorials, workshops and other online work as required by the University while you are enrolled in studies with . 16.11. Notwithstanding any prohibitions in this Control, you are permitted to use or cause another person to use a device or software, even if it is connected to the internet, for the sole purpose of printing or scanning a document for the purpose of the course of study you are enrolled in with , if the document is not prohibited by any controls in this Order. 17. Control 17 17.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any internet service other than: a. the one service that has been provided by the AFP for you to access and/or use (the permitted internet service); and b. a television connected to an internet service at the specified premises, subject to all of the existing controls. 17.2. You are prohibited from allowing any other person to access or use the permitted internet service. 17.3. You are prohibited from causing any other person to access or use on your behalf any other internet service. 17.4. You are prohibited from: a. using a virtual private network (VPN) service; b. using the TOR network; and c. accessing any Darknet services (denoted by "onion" top level domain suffix). 18. Control 18 18.1. You are prohibited from accessing or using, or causing any person to access or use on your behalf, any electronic mail (email) account other than one an account or accounts that has or have been approved in writing by an AFP Superintendent for you to access or use (the permitted email account). 18.2. To seek approval of an AFP Superintendent you must submit a written request and: a. nominate the email 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'. 18.3. You are prohibited from causing or permitting another person to use or access the permitted email account. 18.4. You are prohibited from causing or permitting another person to use or access the permitted email account. Notwithstanding the prohibition in this Control, you are permitted to use an email account issued to you by for the purpose of engaging in a course of study on condition that you provide the AFP Superintendent with the information required by Control 18.2 prior to commencing to use that account. Your use of this email account is subject to all of the existing controls and must only be used and accessed on the permitted computer and/or permitted mobile phone using the permitted internet service. 19. Control 19 19.1. You are prohibited from accessing or using any computer other than the computer that has been provided to you by the AFP for you to access and use (the permitted computer) and your use of the permitted computer is subject to the following condition: a. 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 accessing or using any tablet device other that the tablet device that has been approved in writing by the AFP Superintendent for you to access and use (the permitted tablet device) and your use of the tablet device is subject to the following conditions: a. Before using the permitted tablet device, you must provide the password for the permitted tablet device to the AFP Superintendent; and b. If you change the password for the 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. 19.3. To request approval under Control 19.2 you must: a. submit a written request to the AFP Superintendent which nominates the 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, the nominated tablet device. 20. Control 20 20.1. You are required to consider in good faith participating in counselling or education relating to your spiritual, emotional and physical wellbeing, with a suitably qualified professional counsellor or publicly recognised religious leader, for at least 60 minutes per week. 20.2. If you agree to participate in such counselling or education you must advise the AFP Superintendent in writing that you have commenced the counselling or education and provide the AFP Superintendent the name and qualifications of the professional you have engaged. 21. Exemption 21.1. You may request the AFP Superintendent approve an exemption to the requirements or prohibitions (as the case may be) specified in Controls 1.1, 1.2, 2.1, 2.2, 3.1.a, 3.1.c, 3.1.g, 13, and 16, 17.1, 17.3, 18.1 and 19. 21.2. To request an exemption, you must: a. submit a written request to the AFP Superintendent which: (i) identifies the Control in respect of which you seek an exemption; (ii) explains the extent to which you seek to be exempted from the Control; and (iii) explains your reason(s) for seeking the exemption; and b. provide any other information requested by, or on behalf of, the AFP Superintendent for the purposes of determining whether to approve the exemption. 21.3. The AFP Superintendent may grant an exemption subject to conditions specified in writing. 21.4. You must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition to an exemption, the exemption is (and will be taken to have been for all purposes) of no effect. 21.5. A request for an exemption in respect of Controls 1.1, 1.2, 2.1 and 2.2 must be made three business days before the material time and date. 21.6. A request for an exemption in respect of Controls 3.1.a, 3.1.c, 3.1.g, 13, 16.1, 16.2, and 16.3, 17.1, 17.3 18.1 and 19 must be made seven business days before the material time and date. 21.7. If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused. Interpretation 21.8. In this Interim Control Order: a. AFP Superintendent means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter-Terrorism portfolio. b. Emergency means an actual or imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of yourself or a member of your immediate family, or threatens to destroy or damage the specified premises. c. Password includes but is not limited to any passcode, swipe pattern or any information or function necessary to facilitate access to the applicable device. d. Police officer means a 'member' or 'special member' of the Australian Federal Police, as defined by the Australian Federal Police Act 1979 (Cth), or a 'police officer' or 'special constable' within the meaning of the Police Act 1892 (WA). e. Material time and date means: i. in relation to a request for an exemption to the requirement in Control 1.1 or Control 1.2 the commencement of the curfew period that is the subject of the request (and, if more than one curfew period is the subject of the request, the first of those curfew periods); ii. in relation to a request for an exemption to the requirement in Control 2.1 or Control 2.2 before the conclusion of the reporting period that is the subject of the request (and, if more than one reporting period is the subject of the request, the first of those reporting periods); and iii. in relation to a request for an exemption to the prohibition requirement in Control 3.1.a, Control 3.1.c or 3.1.g the time and date at which you wish to depart Western Australia. iv. in relation to a request for an exemption to the prohibition in Control 16.1, Control 16.2 or 16.3 the time and date at which you wish to access or use, or cause any person to access or use on your behalf, the platform, FaceTime or Skype. v. in relation to a request for an exemption to the prohibition in Control 13 - the time and date at which you wish to access or use, or cause any person to access or use on your behalf, the fixed or landline telephone service. vi. in relation to a request for an exemption to the prohibition in Control 17.1 or 17.3 the time and date at which you wish to access or use, or cause any person to access or use on your behalf, the internet service. vii. in relation to a request for an exemption to the prohibition in Control 18.1 the time and date at which you wish to access or use, or cause any person to access or use on your behalf, the email account. viii. in relation to a request for an exemption to the prohibition in Control 19 the time and date at which you wish to access or use, or cause any person to access or use on your behalf, the computer or tablet device. Specified call means a call made to either: i. your legal representative; ii. your home landline as identified in Control 13; or iii. police. Annexure 1 Annexure 2