Booth v Biber [2021] FCA 871

Federal Court of Australia

Booth v Biber [2021] FCA 871 File number: NSD 694 of 2021

Judgment of: NICHOLAS J

Date of judgment: 29 July 2021

Catchwords: CRIMINAL LAW – whether interim control should be made – whether requirements of s 104.4(1) of the schedule to the Criminal Code Act 1995 (Cth) satisfied – where proposed interim control order not opposed by respondent – interim control order made

Legislation: Criminal Code Act 1995 (Cth) ss 104.2, 104.3, 104.4, 104.5, 117.1 Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth)

Cases cited: Booth v Brookman [2021] FCA 767

Division: General Division

Registry: New South Wales

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 28

Date of hearing: 26 July 2021

Counsel for the Applicant: Mr P Melican

Solicitor for the Applicant: The Australian Government Solicitor

Solicitor for the Respondent: Mr M Davis of Sydney City Crime

ORDERS NSD 694 of 2021

BETWEEN: SANDRA BOOTH Applicant

AND: MEHMET BIBER Respondent

order made by: NICHOLAS J DATE OF ORDER: 29 july 2021

THE COURT ORDERS THAT: 1. The Court hereby makes an interim control order pursuant to s 104.4 of the Criminal Code in relation to Mehmet Biber: (a) on the grounds set out in Schedule 1 to these orders; (b) in the terms set out in Schedule 2 to these orders; and (c) for the reasons summarised in the Reasons for Judgment reproduced in Schedule 3 to these orders. 2. Until further order and pursuant to s 37AF of the Federal Court of Australia 1976 (Cth) on the grounds set out in s 37AG(1)(a) and (c) of that Act there be no publication of the address referred to in control 3.2 of Schedule 2 and the dates of birth referred to in controls 3.2.a.-b, 11.1.f.i.-xii and 11.2.a.-b. 3. The proceeding is listed for hearing at 10.15am on 27 October 2021 (with an estimate of 2 days). Endorsement pursuant to Rule 41.06 To: Mehmet Biber You will be liable to imprisonment, sequestration of property or punishment for contempt if: (a) for an order that requires you to do an act or thing - you neglect or refuse to do the act or thing within the time specified in the order; or (b) for an order that requires you not to do an act or thing - you disobey the order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. SCHEDULE 1 1. This Interim Control Order relates to the Respondent, Mehmet Biber. 2. The Court is satisfied on the balance of probabilities 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). 3. The Court is satisfied on the balance of probabilities that each of the obligations, prohibitions and restrictions to be imposed on the Respondent by the order is reasonably necessary, and reasonably appropriate and adapted, for the purpose of: 3.1 protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); or 3.2 preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code); or 3.3 preventing the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country (s 104(1)(d)(iii) of the Criminal Code). 4. The obligations, prohibitions and restrictions to be imposed on the Respondent by this Interim Control Order are those set out in Schedule 2 to these orders. 5. A summary of the grounds on which the order is made is set out in Schedule 3 to these orders. 6. This Interim Control Order does not begin to be in force until it is served personally on the Respondent and the Respondent is released from custody. 7. If this Interim Control Order is confirmed, the confirmed control order is to be in force for 12 months after the day on which this Interim Control Order is made. 8. The Respondent may attend the Federal Court of Australia at 10.15am on 27 October 2021 on which date the Court will consider whether it should: 8.1 confirm (with or without variation) this Interim Control Order, 8.2 declare this Interim Control Order to be void, or 8.3 revoke this Interim Control Order. 9. The Respondent's lawyer may attend the Australian Federal Police Sydney office at 110 Goulburn Street, Sydney, NSW 2000 between 9:00 am and 4:00 pm, Monday to Friday in order to obtain a copy of this Interim Control Order. Schedule 2 Control 1 1.1 You are required to remain at premises: a. nominated by you within 6 hours from the time that this Interim Control Order comes into force; and b. approved in writing by the AFP Superintendent (the specified premises), between the hours of 12:00 am and 6:00 am (the curfew period) each day from the day on which this Interim Control Order comes into force until the day that it ceases to be in force. 1.2 You must present and identify yourself at the specified premises during the curfew period upon request by a police officer. Control 2 2.1 You are required to wear a tracking device at all times for the duration of this interim control order once provided or fitted in accordance with Control 2.2. 2.2 The tracking device you are required to wear pursuant to Control 2.1 is: a. the tracking device which is provided and/or fitted to you by an AFP member within 12 hours of this interim control order coming into force; or b. if an AFP member provides and/or fits to you a different tracking device for the purposes of this control during the period in which this interim control order is in force – that tracking device, as the case may be. 2.3 For the purposes of Control 2.2.a. you are required to permit AFP members entry to the specified premises and access to your person at a time agreed with the AFP Superintendent (which time must be within 24 hours of nominating the specified premises under Control 1), for the purposes of permitting officers to provide and/or fit you with a tracking device. 2.4 For the avoidance of doubt, if an AFP member provides and/or fits to you a tracking device pursuant to Control 2.2.b, you are no longer required to wear any other tracking device previously provided and/or fitted to you pursuant to this interim control order. 2.5 You are required to do all of the following: a. all things reasonable to: i. permit an AFP member to provide and/or fit to you a tracking device for the purposes of this interim control order; and ii. permit an AFP member to provide you instructions on using and maintaining the tracking device; b. take reasonable steps to ensure that the tracking device you are required to wear, and any equipment necessary for the operation of that tracking device, are or remain in good working order; c. report to the AFP Superintendent, or another AFP member specified in writing by the AFP Superintendent, at the specified premises or a location nominated by the AFP as may be required, at such reasonable times as are from time to time nominated by the AFP Superintendent for the purpose of permitting the AFP Superintendent or an AFP member to inspect, service, modify, replace or repair the tracking device you are required to wear or its charging unit; d. if you become aware that the tracking device you are required to wear, or any equipment necessary for the operation of that tracking device, is not in good working order – notify an AFP member as soon as practicable, but no later than 4 hours, after becoming so aware; e. charge the device on a daily basis to ensure that the battery is charged at all times. 2.6 You must not: a. remove, tamper with, damage or destroy any component of the tracking device you are required to wear or any equipment necessary for the operation of that tracking device; b. attempt to do any of the things referred to in Control 2.6.a; c. permit any other person to do any of the things referred to in Control 2.6.a. 2.7 Control 2.6 does not apply: a. to the extent the AFP Superintendent has authorised any of the things referred to in Control 2.6.a to be done; b. if you are required to undergo an emergency medical procedure that necessitates removal of the tracking device; c. in an emergency, if it is necessary to remove the tracking device to avoid serious injury or death to yourself or any other person. 2.8 One or more AFP members who are authorised by the AFP Superintendent for the purposes of this Control may: a. enter the specified premises for the purpose of installing any equipment necessary for the operation of the tracking device you are required to wear; b. contact you on the permitted mobile phone (as to which, see Control 12) to ensure the tracking device and any equipment necessary for the operation of the tracking device are or remain in good working order Control 3 3.1 You are prohibited from being at any of the following areas: a. within the exclusion zone at Sydney Airport, as identified by yellow shading in Annexure 1; b. within the exclusion zone at Circular Quay, as identified by yellow shading in Annexure 2; c. within the exclusion zone at White Bay, as identified in Annexure 3; d. within 1 km of any Australian airport (besides Sydney Airport, which is addressed in Control 3.1.a) which has an international point of departure, or from which a person can board or charter a flight for an international destination; e. within 1 km of any Australian port (besides Circular Quay and White Bay, which are addressed in Controls 3.1.b and 3.1.c) which has an international point of departure, or from which a person can board or charter a marine vessel for an international destination; f. inside, or in the grounds of, any prison or correctional facility; g. at the residence of any person with whom, by reason of Control 11, you are prohibited from communicating or associating; h. any place in Australia outside the state of New South Wales; i. any firing range or other place which sells or hires firearms or ammunition, or any military surplus store; and j. any premises of any person, organisation or entity (not being premises occupied by an Australian police service or members thereof) where firearms or ammunition are kept or stored. 3.2 Control 3.1 does not prohibit you from being at XXX XXX XXX in the presence of one or more of the following persons: a. Guven BIBER, born XXX XXX XXX; b. Sunay BIBER, born XXX XXX XXX. Control 4 4.1 You are prohibited from leaving Australia. 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, or possessing, or causing or facilitating any other person to access, acquire or possess, 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. published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian f. broadcast on Australian free to air television; g. broadcast on Australian pay television; h. shown in a commercial movie cinema; i. broadcast on one of the following streaming services: Netflix, STAN, Disney+, Prime Video, ABC iView, or SBS on demand; or j. contained in material that is served on you or your legal representative in relation to any legal proceedings before an Australian court to which you are a party, provided that it is accessed, acquired or possessed by you only for a purpose connected with the conduct of those proceedings and not otherwise (Court material). 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, or possessing, or causing or facilitating any other person to access, acquire or possess, 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); g. activities of, or associated with, any 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth); or h. anti-surveillance or counter-surveillance techniques; unless that material is: i. published by a 'constituent body' of the Australian Press Council; j. published by Al Jazeera, the British Broadcasting Corporation (BBC), CNN, or the Guardian; k. broadcast on Australian free to air television; l. broadcast on Australian pay television; m. shown in a commercial movie cinema; n. broadcast on one of the following streaming services: Netflix, STAN, Disney+, Prime Video, ABC iView, SBS on demand; or o. Court material. Control 7 7.1 You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: storing, producing or distributing, or causing or facilitating any other person to store, produce or distribute, 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. 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 j. activities of, or associated with, any 'terrorist organisation' within the meaning of s 102.1(1) of the Schedule to the Criminal Code Act 1995 (Cth). 7.2 Control 7.1 does not prohibit you from storing Court material or distributing Court material to your legal representatives, to another party to the proceedings to which the material relates, or to the Australian court those proceedings are before. Control 8 8.1 You are prohibited from carrying out the following specified activities (including in respect of your work or occupation), namely: renting, purchasing, or driving any vehicle which exceeds a gross vehicle mass of 4.5 tonne. 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. 9.2 In notifying the AFP Superintendent, you must contact the AFP Superintendent (by phone or in writing) and provide information about the proposed work, including details of the employer (including their name and place of business) and the nature of the work that will be undertaken. 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 the following specified articles or substances: a. firearm, firearm part or ammunition within the meaning of s 4 of the Firearms Act 1996 (NSW); b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 (NSW) legislation; 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; 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; 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 in possession of the thing, to be used to injure or menace a person or damage property. Control 11 11.1 You are prohibited from communicating or associating with, directly or indirectly (including through a third party): a. any person incarcerated or otherwise being held in custody in any prison or correctional facility; b. any person known to you to be in the community subject to a control order made under Division 104 of the Criminal Code Act 1995 (Cth) or an interim or extended supervision order made under the Terrorism (High Risk Offenders) Act 2017 (NSW); c. any person known to you to be convicted of, or currently charged with, a 'terrorism offence' within the meaning of s 3(1) of the Crimes Act 1914 (Cth); d. any person known to you to be convicted of an offence under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth); e. any person known to you to be located in Turkey, Iraq or Syria; and f. any of the following persons: i. Emir BIBER, born XXX XXX XXX; ii. Cem TEKRIDAG, born XXX XXX XXX; iii. Muhammad Abdul-Karim MUSLEH, born XXX XXX XXX; iv. Abdullah AZARI, born XXX XXX XXX; v. Kamal JALAL, born XXX XXX XXX; vi. Omar JAWABREH, born XXX XXX XXX; vii. Mahmoud SUMREIN, born XXX XXX XXX; viii. Wisam HADDAD, born XXX XXX XXX; ix. Hicham ISMAIL, born XXX XXX XXX; x. Tamer ABDULKADER, born XXX XXX XXX; xi. Nayef SALAMEH, born XXX XXX XXX; xii. Bilal BETKA, born XXX XXX XXX. 11.2 Control 11.1 does not prevent you from communicating or associating with Emir BIBER or Cem TEKRIDAG in person, in presence of and under the supervision of one or more of the following persons: a. Guven BIBER, born XXX XXX XXX; b. Sunay BIBER, born XXX XXX XXX. Control 12 12.1 You are prohibited from accessing or using, any mobile telephone device other than one mobile telephone device (the permitted mobile phone), and your use of the permitted mobile phone is subject to the following conditions: a. before using the permitted mobile phone, you must present it to the AFP Superintendent (or a police officer specified in writing by the AFP Superintendent) for inspection; b. before using the permitted mobile phone, you must advise the AFP Superintendent, in writing, of the following information: i. the International Mobile Equipment Identity number for the permitted mobile phone; ii. the Integrated Circuit Card Identifier for the SIM card you will use with the permitted mobile phone; iii. the telecommunication service provider which you will use with the permitted mobile phone; and iv. 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 the AFP Superintendent of the information required by paragraph 12.1.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; and d. if you change the password for the permitted mobile phone, 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. 12.2 If the permitted mobile phone is one that the AFP has provided to you: a. Controls 12.1.a and 12.1.b.i-iv do not apply; and b. Control 12.1.c applies as if the following words were omitted: 'once you have advised the AFP Superintendent of the information required by paragraph 12.1.b above'. 12.3 You are prohibited from causing or permitting another person to use or access the permitted mobile phone. 12.4 You are prohibited from causing or permitting another person to use or access any mobile telephone device on your behalf. Control 13 13.1 You are prohibited from accessing or using any fixed or landline telephone service other than a service that has been approved in writing by the AFP Superintendent for you to access or use. 13.2 To seek approval, you must: a. submit a written request to the AFP Superintendent which nominates the fixed or landline telephone service; and b. provide any other information requested by or on behalf of the AFP Superintendent for the purpose of identifying the nominated fixed or landline telephone service. 13.3 You are prohibited from causing another person to use or access any fixed or landline telephone service on your behalf. 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 in the case of an emergency, provided that you contact the AFP Superintendent as soon as practicable after accessing or using the public telephone and provide the AFP Superintendent with the following information: a. sufficient details to enable the AFP Superintendent to identify the public telephone; b. the date and time that you accessed or used, or caused another person to access or use, the public telephone; c. the phone number(s) that were called using the public telephone; d. if you caused another person to access or use the public telephone on your behalf – the name of that person and any other information required by the AFP Superintendent to identify them; and e. an explanation of the emergency which required you to access or use, or cause another person to access or use on your behalf, the public telephone. 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. 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. Facebook b. Facebook Messenger c. FaceTime d. Google Duo e. Google Hangouts. f. Google Talk g. Instagram h. KIK i. Signal Private Messenger j. Skype k. Snapchat l. Telegram m. Twitter n. Viber o. WhatsApp 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 Voice Over Internet Protocol (VOiP) service. 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, any internet based messaging service. 16.4 However, Controls 16.2 and 16.3 do not prohibit access to or the 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. 16.5 You are prohibited from accessing or using, or causing any person to access or use on your behalf, any encrypted storage applications which may or may not purport to be another application, for the purposes of accessing or storing 'data', as defined in s 3 of the Crimes Act 1914 (Cth). Control 17 17.1 You are prohibited from accessing or using any internet service other than a service that has been approved in writing by the AFP Superintendent for you to access or use (the permitted internet service). 17.2 To seek approval you must: a. submit a written request to the AFP Superintendent which: i. nominates the internet service provider account; and ii. nominates the devices you will connect to the internet service (including but not limited to computers and televisions); 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 and devices. 17.3 You are prohibited from causing any other person to access or use on your behalf any other internet service. Control 18 18.1 You are prohibited from accessing or using any electronic mail (email) account other than an account that has been approved in writing by the AFP Superintendent for you to access or use (the permitted email account). 18.2 To seek approval: a. you must submit a written request to the AFP Superintendent which nominates 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. 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 any other person to access or use on your behalf any email account. Control 19 19.1 You are prohibited from accessing or using any computer other than a computer that has been approved in writing by the AFP Superintendent for you to access or use (the 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 To request approval under Control 19.1 you must: a. submit a written request to the AFP Superintendent which nominates the computer; 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 computer. Control 20 20.1 You are prohibited from accessing or using, or causing any person to access or use on your behalf, any tablet device, including but not limited to an iPad or a Samsung Galaxy Tab. 20.2 However, Control 20 does not prohibit you from accessing or using a computer with tablet device functionalities that is approved for use as the 'permitted computer' pursuant to Control 19. Control 21 21.1 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. 21.2 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. Exemptions requested by you 22.1 You may request the AFP Superintendent approve an exemption to the obligations, requirements or prohibitions specified in Controls 1-21 above. 22.2 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. 22.3 The AFP Superintendent may grant an exemption subject to conditions specified in writing. 22.4 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. 22.5 A request for an exemption must be made before the material time and date (as defined in Control 25.1). 22.6 If the AFP Superintendent has not approved an exemption by the material time and date, the request is deemed to have been refused. Exemptions granted by the AFP without a request from you 23.1 An AFP Superintendent may grant an exemption, initiated by the AFP, to the requirements or prohibitions specified in the Controls with your consent. 23.2 The AFP Superintendent may grant an exemption subject to reasonable conditions specified in writing provided on reasonable notice to you and to which you consent in writing. 23.3 If an exemption is granted and consented to in accordance with paragraphs 23.1 and 23.2, you must comply with all of the conditions specified in writing by the AFP Superintendent. If you do not comply with a condition of an exemption, the exemption is (and will be taken to have been for all purposes) of no effect. Application of controls while in custody 24.1 Controls 1-23 do not apply during any period in which you are held by or on behalf of any officer in a prison or remand centre of the Commonwealth, a State or a Territory. 24.2 Controls 1-23 resume their application at the conclusion of any period referred to in Control 24.1. Interpretation 25.1 In this Interim Control Order: a. 'material time and date' means: i. in relation to a request for an exemption to a Control that requires you to do an act - the time and date that you are required to do that act and propose not to do it; ii. in relation to a request for an exemption to a Control that prohibits you from doing an act - the time and date that you propose to do that act; iii. in relation to a request for an exemption to a Control that requires you to be present at an area or place - the time and date that you are required to be present at that area or place and propose not to be; iv. in relation to a request for an exemption to a Control that prohibits you from being present at an area or place - the time and date that you propose to be present at that area or place. b. 'AFP Superintendent' means a member of the Australian Federal Police performing the duties of a Superintendent within the Counter Terrorism portfolio. 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' within the meaning of the Police Act 1990 (NSW).