Taylor v Brookman

Introduction 1 On 4 March 2024, I made orders pursuant to s 104.14(7)(c) of the Criminal Code, a schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code) that the interim control order made in relation to the respondent on 5 October 2023 is confirmed without variation in the terms of the confirmed control order set out in the annexure to these orders and that the confirmed control order be in force until and including 5 July 2024. These are my reasons for making the orders. 2 The applicant is Commander Caroline Taylor who is a member of the Australian Federal Police and with the substantive rank of Commander, Operations and Support, Northern Command. The respondent is Mr Adam Mathew Brookman. 3 There is one difference between the interim control order and the confirmed control order as to the basis of the orders. In the interim control order, it is recorded that the Court was satisfied on the balance of probabilities of each of the following: (1) that the respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code; and (2) that the respondent has provided support for or otherwise facilitated the engagement in a hostile activity in a foreign country (s 104.4(1)(c)(vii) of the Criminal Code). By contrast, the confirmed control order records that the Court was satisfied on the balance of probabilities that the respondent has been convicted in Australia of an offence relating to terrorism (s 104.4(1)(c)(iv) of the Criminal Code), but it does not make any reference to s 104.4(1)(c)(vii) of the Criminal Code. That is not because the applicant could not establish that ground, but rather because she did not consider that it was necessary that she do so. 4 As far as satisfying the requirement of s 104.4(1)(c)(iv) of the Criminal Code that the offence relates to terrorism, a terrorist organisation or a terrorist act is concerned, the applicant relies on the respondent's conviction for performing services for any other person or any body or association of persons, with the intention of supporting or promoting the commission of an offence against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) and four offences of intentionally breaching a control order contrary to s 104.27 of the Criminal Code. 5 With respect to the interim control order, I was satisfied that the senior Australian Federal Police member had requested it in accordance with s 104.3. With respect to the confirmed control order, I was satisfied that an election had been made under s 104.12A and I was satisfied on the balance of probabilities that s 104.12 and subsection 104.12A(2) had been complied with in relation to the order. 6 The purpose of a control order is to protect the community and not to punish the respondent. That can be seen from s 104.1 and s 104.4(1)(d)(iii)-(v) which provide that both the objects of the Division and the test for each and every condition in a control order is the protection of the public, the prevention of the provision of support for or the facilitation of terrorist acts or the prevention of the provision of support for or the facilitation of the engagement in a hostile activity in a country. The Court must be satisfied that each and every condition is reasonably necessary and reasonably appropriate and adapted, for the purpose of one or more of these purposes. That the purpose of a control order is the protection of the community and not to punish the respondent is made clear in the authorities: Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 (Thomas v Mowbray) at [79] per Gummow and Crennan JJ; McCartney v EB [2019] FCA 183; (2019) 263 FCR 170 at [18] per Wigney J. As the applicant submitted, the protective purpose of the provision in Division 104 supports a more beneficial (to the applicant) and less restrictive construction of its provisions than would be the case if it contained penal provisions. 7 In considering whether the Court is satisfied on the balance of probabilities that, for example, making the order would substantially assist in preventing a terrorist act, the Court is entitled to rely on matters of common knowledge. In Thomas v Mowbray, Gummow and Crennan JJ said the following (at [92]): The federal judges exercising the jurisdiction conferred by the interim control order provisions will bring to their consideration of whether "making the order would substantially assist in preventing a terrorist act" (s 104.4(1)(c)(i)) and of the particular form of an order, both matters of common knowledge, some of which we have referred to above, and the facts and circumstances disclosed in the evidence on the particular application for an order. From consideration of the legislation on a case by case basis it may be expected that guiding principles will emerge, a commonly encountered phenomenon in judicial decision-making. 8 The applicant submitted that the application was brought, in part, on the basis that the respondent is a potential perpetrator of a terrorist act. However, even if the Court is not satisfied of this, the applicant submits that the order sought may still "substantially assist" in preventing a terrorist attack. As Gummow and Crennan JJ said in Thomas v Mowbray, the person subjected to the control order may be someone other than the prospective perpetrator of a terrorist act, that is because the making of the order may nevertheless be of substantial assistance in preventing that act. 9 The applicant submitted that there is no fixed meaning of "substantial" or "substantially" and the case law does not suggest a quantitative or proportional assessment. In different context, it has been held to mean "not trivial or minimal" or "more than merely insubstantial or insignificant". The applicant submits that in light of the protective purpose of Division 104, such a meaning is appropriate in construing s 104.4(1)(c)(i). 10 With respect to the requirement that the Court be satisfied on the balance of probabilities that each of the conditions and the combined effect of all of the conditions is reasonably necessary, and reasonably appropriate and adapted, in Thomas v Mowbray, Gleeson CJ (at [19]) said that a requirement of that kind would sometimes be described as a requirement of proportionality and his Honour went on to say: Judgments about proportionality often require courts to evaluate considerations that are at least as imprecise as those involved in formulating a control order. 11 Justices Gummow and Crennan said that s 104.4(1) requires in para (d) that each of the proposed obligations, prohibitions and restrictions must be measured against the requirements of "reasonably necessary" and "reasonably appropriate and adapted". These matters are to be weighed against the impact upon the circumstances of the person in question as a "balancing exercise" (s 104.4(2)). Their Honours also went on to refer to McCulloch v Maryland (1819) 4 Wheat 316 at 413-414 [17 US 159 at 203] and said (at [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 it 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).

The Evidence 12 The applicant relies on the following evidence: a detailed statement of agreed facts within the terms of s 191 of the Evidence Act 1995 (Cth); substantial sections of the open affidavit of Caroline Taylor affirmed on 7 July 2023 ([1]-[2], [7], [41]-[49], [51]-[71], [72]-[97], [98]-[107], [109]-[116] (except insofar as these paragraphs relate to condition 1 which is no longer sought), [117]-[158], [159]-[164] (except insofar as these paragraphs relate to condition 19 which is no longer sought) and [168]-[170]); and the affidavit of Commander Taylor affirmed on 22 September 2023. The respondent did not file any evidence to be used at the confirmation hearing. 13 The respondent indicated that he did not oppose the confirmation of the interim control order in the same terms. He accepted that the Court could be satisfied on the balance of probabilities that he had been convicted in Australia of an offence relating to terrorism on the basis that he had been convicted in Australia of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act. He also accepted that it was open to the Court to find that each of the obligations, prohibitions and restrictions proposed are reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting the public from a terrorist act, or preventing the respondent from supporting or facilitating a terrorist act or a hostile activity for the purposes of s 104.4(1)(d) of the Criminal Code.

The Requirement in s 104.4(1)(c) 14 As I have said, the applicant relies on the fact that the respondent has been convicted in Australia of an offence relating to terrorism. On 14 April 2021, the respondent pleaded guilty to one count of perform services in support or promotion of the commission of an offence against s 6 of the Crimes (Foreign Incursions and Recruitment) Act contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act. 15 There was a previous interim control order against the respondent made by the Court (Snaden J) on 6 July 2021 which was confirmed on 31 January 2022 (Booth v Brookman [2021] FCA 767; Booth v Brookman (No 3) [2022] FCA 42). In between the two events, the interim control order was varied as a result of the respondent being taken into custody (Booth v Brookman (No 2) [2022] FCA 30). 16 On 3 February 2023, the respondent pleaded guilty to, and was convicted and sentenced for four charges of breaching the first interim control order. 17 The applicant submits that the Foreign Incursions offence and the offences of breaching the first interim control are offences "relating to terrorism" within s 104.4(1)(c)(iv). That phrase is not defined in the Criminal Code and nor is the word, "terrorism". As Anastassiou J noted in Booth v Kaya [2020] FCA 25 at [13], there is no internationally accepted definition of "terrorism" as what would constitute a "terrorism offence". 18 The Foreign Incursions offence has been recognised as an offence relating to terrorism in the case of the first interim control order (Booth v Brookman [2021] FCA 767 at [2] and Booth v Brookman (No 3) [2022] FCA 42 at [11]) and I see no reason not to take a similar approach in this case. 19 With respect to the offences involving contraventions of the first interim control order, the Crimes Act 1914 (Cth) defines "terrorism offences" to include offences against Part 5.3 and 5.5 of the Criminal Code. The offences involving contraventions of the first interim control order (i.e., s 104.27(1)) are Part 5.3 offences and are, therefore, "terrorism offences" within the definition. They meet the description of offences "relating to terrorism" within s 104.4(1)(c)(iv). 20 In the circumstances, I do not need to deal with the applicant's assertion that the circumstances fall within s 104.4(1)(c)(vii) other than to say that the agreed facts in para 6 and paras 35 to 41 inclusive would appear to support this contention (see also McCartney v EB (No 2) [2019] FCA 184 at [18] per Wigney J).

The Requirement in s 104.4(1)(d) 21 The applicant referred to the fact that the Court is required to make an assessment of the risk of a matter occurring in the future in deciding whether the conditions proposed are reasonably necessary and reasonably appropriate and adapted for the purposes set out in s 104.4(1)(d). 22 In that regard, I was referred to what the plurality said in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (at 575): Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 23 Similar reasoning has been applied in the context of control orders under Part 5.3 of the Criminal Code. 24 The applicant relies on a number of matters in support of the conditions she proposes. 25 First, she relies on the fact that the circumstances which formed the basis of the conviction against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act was that the respondent by 14 March 2014 had travelled to Idlib, Syria via Turkey and he remained in Syria until he crossed the border back to Turkey at some point between 19 November 2014 and 27 January 2015. The respondent carried out guard duty, undertook training, undertook reconnaissance, maintained weapons and provided medical services for a group of men who were foreign fighters. He intended to support or promote the Chechen group(s) in their engagement in hostile activity in Syria within the charge period. These conclusions are based on the SOAF. 26 Secondly, the applicant relies on the respondent's online activities on Facebook and Instagram during the offending period and while he remained in Syria in 2014 and, in particular, his posts which showed: (1) support for the cause of Islamic State and combatants opposed to the Syrian Government (SOAF [39.1], [42.1] and [43.1]); (2) glorified violence carried out by those opposition forces, in particular against "kuffar" (disbelievers) (SOAF [42.1], [37.6], and [42.2]); and (3) refers approvingly to violent jihad and to "mujahideen", including by specifically endorsing martyrdom (SOAF [37.6], [37.10], [40.1], [41.1], [42.1], [42.3]-[42.5], [42.7], [42.8], [42.11] and [43.2]). I agree that matters in the SOAF support the propositions advanced by the applicant. 27 Thirdly, with respect of the offences of contravening conditions in the first interim control order, the SOAF supports the conclusion that the respondent continues to pose a risk of supporting or facilitating a terrorist act, or supporting or facilitating the engagement in a hostile activity in a foreign country. The respondent has repeatedly violated specific controls outlined in the order. He deleted internet history on his permitted devices multiple times, including instances related to accessing pornographic material and attempting to conceal his online activities by turning off YouTube History. He accessed various social media platforms without obtaining written approval as required by the first interim control order demonstrating a consistent pattern of non-compliance. The respondent's online activities during the period of contravention of the first interim control order contravention included accessing content related to sensitive topics such as the conflict in Afghanistan. As the applicant submitted, this behaviour indicates a potential for involvement in contentious or potentially harmful discussions or actions related to these subjects, posing a risk to individuals or groups associated with such topics. The respondent accessed electronic media depicting firearms, ammunition, execution, extreme violence, sexual violence, and rape, including animated pornographic comics containing explicit violence. These actions raise concern about his consumption of and potential desensitisation to violent and inappropriate content. Such exposure can contribute to desensitisation towards violence and potentially increase the likelihood of engaging in violent behaviour. 28 Fourth, the SOAF indicates that the respondent has continued to dispense religious advice. Although there is no evidence that that advice related to terrorism or extremist ideology, individuals with a history of extremism can utilise religious preaching to promote extremist ideologies and influence vulnerable individuals towards radicalisation. The risk is exacerbated by the respondent's profile as a person who has expressed extremist views and been on the front line in Syria which is likely to increase his ability to groom vulnerable individuals. 29 Fifth, the respondent's association with Momena Shoma suggests that he is an ongoing risk. The lengthy section in the SOAF in relation to Ms Shoma and the respondent's relationship with her supports the following conclusions. Ms Shoma was convicted on 29 January 2019 of engaging in a terrorist act contrary to s 101.1 of the Criminal Code and was sentenced to 42 years imprisonment with a non-parole period of 31 years and 6 months. She is currently serving her sentence at the Dame Phyllis Frost Centre and is eligible for parole in 2050. Ms Shoma arrived in Australia as an international student on 1 February 2018. She engaged in an act of terrorism in Mill Park, Victoria on 9 February 2018. At the time, Ms Shoma was residing at a "homestay" residence when she armed herself with a kitchen knife and stabbed the owner of the residence whilst he was asleep next to his five year old daughter. When interviewed by investigators, Ms Shoma admitted that she had travelled to Australia with the intent to undertake an act of terrorism. On 31 May 2019, the respondent initiated mail correspondence with Ms Shoma. This was after she was convicted and before she was sentenced. It is apparent that the respondent made a deliberate effort to establish a relationship with someone involved in terrorist activities. On 22 October 2019, the respondent wrote to Ms Shoma expressing his opinion and admiration for her. On 26 October 2019, he again wrote to Ms Shoma proposing that the two get married. He said that it was obvious that he and Ms Shoma have the same views on religion and morality and he recommended that she pray to Allah about it before making a decision so that they can be sure they are pleasing Allah. On 3 August 2019, Ms Shoma wrote to the respondent expressing her disdain about chaplains and how she refuses to renounce her extremist beliefs. She wrote a further letter to the respondent on that date in which she spoke in favour of Jihad. On 27 September 2019, Ms Shoma wrote a letter to the applicant in which she said that she continued to admire the respondent's faith and commitment to Islam, Jihad and his family. On 6 October 2019, Ms Shoma wrote to the respondent expressing her view that martyrdom is a victory and an obligation. On 7 March 2020, the respondent sent Ms Shoma, through the prison mail system, copies of chapters of an unknown book which talks about topics such as Jihad and martyrdom. 30 Ms Shoma committed a second terrorist attack against an inmate whilst in custody and on 29 June 2021, she entered pleas of guilty to charges of engaging in a terrorist act on 30 October 2020 contrary to s 101.1 of the Criminal Code, and being a member of a terrorist organisation, namely Islamic State, knowing that the organisation was a terrorist organisation, between on or about 4 July 2019 and on or about 30 October 2020 contrary to s 102.3 of the Criminal Code. 31 On 12 April 2021, which was two days before the respondent entered a plea of guilty to the Foreign Incursion offence, the respondent wrote a letter to Ms Shoma to end their relationship. The respondent criticised the use of violence against innocent civilians, but also referenced a Quranic verse about legal retribution and the applicant contends that this indicated a willingness to justify or rationalise violence under certain circumstances. I accept the applicant's submission that the respondent's continued engagement with Ms Shoma is extremely concerning. 32 Sixth, as the applicant correctly submits, there is no cogent evidence upon which the Court can act to support the view that the respondent's beliefs have changed since he committed the terrorism offences. To the contrary, there is significant evidence to support the inference that the respondent's extremist ideology has not changed. Whilst in prison, the respondent sought out and connected with inmates who had recently converted to Islam. Whilst there is no evidence that he attempted to radicalise any of these inmates, his role in custody in providing religious advice demonstrates the potential ability he has to indoctrinate others. 33 The respondent was released from the Melbourne Remand Centre on 5 May 2023 and is currently in the community. He continues to be a voluntary participant of the community integration support program (CISP) since his release. Since his release, the respondent has done the following: (1) actively taken steps to obtain his driver's licence; (2) visited his mother regularly; (3) seen a CISP psychologist on a regular basis; (4) engaged with a social worker who has assisted him with issues relating to housing and attempts to find employment; (5) indicated a desire to see his children one day in the future; (6) advised Victoria Police of a change in his address; (7) participated in a course which will allow him to work on building sites in Victoria; and (8) started a pre-electrical apprenticeship course at RMIT Bundoora which is a six month full-time course. There are other signs referred to in the agreed facts at [87]-[89] which are positive. However, insufficient time has passed to conclude that the respondent's ideology or risk have (as the applicant puts it) "sufficiently changed". 34 In Commander Taylor's open affidavit, she expresses the following opinion: In my opinion, the Respondent poses a significant risk to the community of supporting or facilitating a terrorist act in Australia or overseas, or supporting or facilitating the engagement in a hostile activity in a foreign country. The consequences if this risk materialises are very serious. This is particularly so having regard to the ability of lone offenders to carry out successful terrorist attacks and cause serious damage and loss of life without requiring significant knowledge, resources or sophisticated equipment. I accept Commander Taylor's opinion in light of her extensive background and experience as outlined in Part IV of her affidavit. I have also had regard to Commander Taylor's evidence with respect to each and every one of the controls that appears in Part VII of her open affidavit ([98]-[170]). Again, I place considerable weight on her opinions and I consider that the controls are reasonably necessary and reasonably appropriate and adapted for the purpose of protecting the public from a terrorist act and/or preventing the provision of support for, or the facilitation of, a terrorist act or the engagement in a hostile activity in a foreign country. 35 It was for these reasons that I made the interim control order and then confirmed that order. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.