FEDERAL COURT OF AUSTRALIA
Fogarty v Jakovac (No 2) [2023] FCA 234
File number: NSD 902 of 2022 Judgment of: BROMWICH J Date of judgment: 16 March 2023 Catchwords: CRIMINAL LAW – election pursuant to s 104.12A of the Criminal Code (Cth) to confirm an interim control order made against the respondent under s 104.4 of the Criminal Code – where the respondent has been convicted of an offence relating to terrorism – consideration of whether there remains a residual risk of reoffending arising from both the history of the respondent’s conduct and the evidence of his present circumstances – Held: ICO revoked as it is no longer justified Legislation: Criminal Code (Cth) ss 104.12A, 80.2C(1) Cases cited: Fogarty v Jakovac [2022] FCA 1454 Division: General Division Registry: New South Wales National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 11 Date of hearing: 16 March 2023 Counsel for the Applicant: Mr T Glover and Mr M Pruscino Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr C O’Donnell SC and Mr D Bhutani Solicitor for the Respondent: Ryan & Payten Criminal Law Specialists ORDERS
NSD 902 of 2022 BETWEEN: PETER BRIAN FOGARTY
Applicant
AND: TYLER SLAVKO JAKOVAC
Respondent
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
16 MARCH 2023
THE COURT ORDERS THAT:
1.The interim control order made on 29 November 2022 be revoked.
2.The applicant pay the respondent’s costs of and incidental to the control order confirmation hearing as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex-tempore)BROMWICH J:
On 29 November 2022, I made an interim control order (ICO) over the objection of the respondent, Mr Tyler Jakovac, giving reasons ex tempore: Fogarty v Jakovac [2022] FCA 1454 (ICO judgment). A summary of the grounds for making those orders are set out in Annexure B to the ICO, also reproduced with the reasons, essentially referring to:
(a)his guilty plea and 18 month gaol sentence, with a non-parole period of 14 months, for advocating the doing of a terrorist act or the commission of a terrorist offence, contrary to s 80.2C(1) of the Criminal Code (Cth); and
(b)there having been established a real risk, for further reasons set out, that, following his release from custody and return into the community, he would be involved in committing, supporting or facilitating a terrorist act in Australia.
The matter was stood over to today, 16 March 2023, for a hearing at which the Court would either confirm the ICO (with or without variation), declare it to be void, or revoke it. By a notice dated 3 March 2023, the applicant, Detective Superintendent Fogarty of the Australian Federal Police (AFP), gave notice to Mr Jakovac under s 104.12A of the Criminal Code of his election to seek to have this Court confirm the ICO with certain variations. Mr Jakovac opposes the confirmation of…
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- AGLC
- Fogarty v Jakovac (No 2) [2023] FCA 234
- Case
- [2023] FCA 234
- Decision Date
CaseChat Overview and Summary
In the case of Fogarty v Jakovac (No 2), the Australian Federal Court was asked to decide whether to confirm, vary, declare void, or revoke an interim control order (ICO) made against Tyler Jakovac under the Criminal Code. The ICO was made following Mr Jakovac's conviction for advocating a terrorist act. The primary issue before the Court was whether there remained a residual risk of reoffending by Mr Jakovac, considering both his history of conduct and present circumstances. The Court had to weigh the evidence of Mr Jakovac's past offending against his current behaviour and circumstances, including his engagement in programs designed to counter violent extremism and his positive social influences.
The Court carefully considered the submissions from both parties and the evidence presented. It highlighted that while Mr Jakovac had shown positive behaviour since his release from custody, such as gaining employment and engaging with police positively, this did not sufficiently mitigate the risk of reoffending. The Court underscored that the nature of Mr Jakovac's prior offending, which was conducted privately online, posed a significant risk that could recur if not adequately addressed. The Court concluded that there remained a live risk of reoffending unless Mr Jakovac could provide compelling evidence of a material change in his outlook and stance.
Ultimately, the Court decided to revoke the interim control order, finding it was no longer justified. The Court ordered that the applicant, Detective Superintendent Fogarty, pay the respondent’s costs of and incidental to the control order confirmation hearing as agreed or assessed. This decision reflects the Court's careful assessment of the risks and the need for continued vigilance, despite positive developments in Mr Jakovac's behaviour.
The Court carefully considered the submissions from both parties and the evidence presented. It highlighted that while Mr Jakovac had shown positive behaviour since his release from custody, such as gaining employment and engaging with police positively, this did not sufficiently mitigate the risk of reoffending. The Court underscored that the nature of Mr Jakovac's prior offending, which was conducted privately online, posed a significant risk that could recur if not adequately addressed. The Court concluded that there remained a live risk of reoffending unless Mr Jakovac could provide compelling evidence of a material change in his outlook and stance.
Ultimately, the Court decided to revoke the interim control order, finding it was no longer justified. The Court ordered that the applicant, Detective Superintendent Fogarty, pay the respondent’s costs of and incidental to the control order confirmation hearing as agreed or assessed. This decision reflects the Court's careful assessment of the risks and the need for continued vigilance, despite positive developments in Mr Jakovac's behaviour.
Orders
Orders of the court
1. The interim control order made on 29 November 2022 be revoked.
2. The applicant pay the respondent’s costs of and incidental to the control order confirmation hearing as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 29 November 2022, I made an interim control order (ICO) over the objection of the respondent, Mr Tyler Jakovac, giving reasons ex tempore: Fogarty v Jakovac [2022] FCA 1454 (ICO judgment). A summary of the grounds for making those orders are set out in Annexure B to the ICO, also reproduced with the reasons, essentially referring to:(a)his guilty plea and 18 month gaol sentence, with a non-parole period of 14 months, for advocating the doing of a terrorist act or the commission of a terrorist offence, contrary to s 80.2C(1) of the Criminal Code (Cth); and (b)there having been established a real risk, for further reasons set out, that, following his release from custody and return into the community, he would be involved in committing, supporting or facilitating a terrorist act in Australia. The matter was stood over to today, 16 March 2023, for a hearing at which the Court would either confirm the ICO (with or without variation), declare it to be void, or revoke it. By a notice dated 3 March 2023, the applicant, Detective Superintendent Fogarty of the Australian Federal Police (AFP), gave notice to Mr Jakovac under s 104.12A of the Criminal Code of his election to seek to have this Court confirm the ICO with certain variations. Mr Jakovac opposes the confirmation of the ICO in any form. Neither side advanced any compromise. In the ICO judgment, I made the following key observations (emphasis added):[21] Detective Superintendent Fogarty submits that what has happened in the past is the most reliable guide to what will happen in the future, citing Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed in relation to the 1951 Geneva Convention Relating to the Status of Refugees’ predictive concept of a well-founded fear of persecution:(a) at 574:The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.(b) 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.[22] The same reasoning necessarily also applies to the two risks sought to be mitigated by control orders in this case, namely the level of risk of the provision of support for or the facilitation of a terrorist act or of the provision of support for or the facilitation of the engagement in a hostile activity in a foreign country. [23] In a case such as this, there is little in the way of fact finding required as to past events involving Mr Jakovac. The evidence, especially of agreed facts tendered in the criminal proceedings brought against him, and in the sentencing court’s fact finding, delivers quite a high degree of certainty as to what has previously taken place by and in relation to him. It is the application of those past proven events, in the context of the rest of the evidence and applicable general knowledge and experience, that informs the Court’s evaluative assessment of the risks that he poses and whether each proposed control, considered in the context of the other controls, is reasonably necessary, and reasonably appropriate and adapted to mitigate those risks.[24] Detective Superintendent Fogarty has provided a detailed account of Mr Jakovac’s past conduct in an exhibited statement of facts relating to why the interim control orders should be made, and an annexed statement of facts relating to why the interim control orders should not be made, being documents furnished to the AFP Minister as required by s 104.2(3)(aa) of the Criminal Code. He has also provided additional facts why an ICO should not be made, referring to Mr Jakovac’s conduct since his release from custody on 25 July 2022, including in particular obtaining a job and engaging positively with police.[25] The essence of the key reasons favouring the making of an ICO are distilled in a summary of those grounds, and again furnished to the AFP Minister, as required by s 104.2(3)(aa) of the Criminal Code, which I consider amply justify the very limited sorts of control orders sought by Detective Superintendent Fogarty, in terms of that being reasonably necessary, and reasonably appropriate and adapted for the purposes identified in s 104.4(1)(d)(i) and (ii). In reaching that conclusion, I have carefully considered the submissions advanced by Mr Jakovac in written submissions and orally, having regard to his relative youth at the time of his offending and still being quite young now, the motivation for the offending of “fitting in”, which Judge Buscombe described as having an air of fantasy about it, the absence of any record of violence, him never having engaged in more serious terrorism or terrorist related offences, his good behaviour in custody, the positive social influences upon him, his engagement in programs to counter violent extremism, him engaging in paid employment and having a positive social life and the absence of any evidence of behaviour of concern. All of those observations appear to be correct, but that does not grapple with the nature of his prior offending, done in private online, and the risk that this may recur, which cannot be said to be below a level of concern in the absence of compelling evidence that this is all in the past. [26] The problem with Mr Jakovac’s approach to the contrary is that this is a risk assessment exercise. He and he alone is best placed to demonstrate in a compelling way that his outlook and stance has changed, whether by the best means of direct evidence from him, or the distinctly second-best means of indirect evidence from another person or other sources, such evidence as there is being at best a positive indicator but ultimately equivocal or at least uncertain. But if, at present, he chooses not to do so by either means, the ordinary inference would be that there at least remains a live risk that such material change has not in fact taken place, or taken place to a sufficient degree.
Ratio Decidendi
Legal Principle Established
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