McDonald v Dakkak - [2022] FCA 1065

FEDERAL COURT OF AUSTRALIA
McDonald v Dakkak [2022] FCA 1065

File number: NSD 654 of 2022

Judgment of: YATES J

Date of judgment: 9 September 2022

Catchwords: CRIMINAL LAW – control orders – offence relating to terrorism - application for interim control order pursuant to s 104.4 of the Criminal Code – where respondent previously subject to interim control order

Legislation:
Criminal Code Act 1995 (Cth) Sch, ss 100.1, 102.8(1), 104.1, 104.1(c) – (d), 104.2(1), 104.3, 104.4, 104.4(1)(c)(iv), 104.4(1)(d), 104.4(2), 104.4(2A), 104.4(d), 104.5, 104.12A(1), 104.14(7)(b), 104.27, 104.28A, Ch 5, Pt 5.3, Div 104

Evidence Act 1995 (Cth) s 75

Cases cited:
Booth v Dakkak [2020] FCA 1882

McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002

McCartney v EB [2019] FCA 183; 263 FCR 170

R (Cth) v Dakkak [2022] NSWDC 181

R v Dakkak [2020] NSWSC 1806

Thomas v Mowbray [2007] HCA 33; 233 CLR 307

Division: General Division

Registry: New South Wales

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 66

Date of hearing: 6 September 2022

Counsel for the Applicant: Mr T Glover

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: The Respondent appeared in person

ORDERS

NSD 654 of 2022

BETWEEN:
AMELIA MCDONALD

Applicant

AND:
RADWAN DAKKAK

Respondent

ORDER MADE BY:

YATES J

DATE OF ORDER:

9 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The applicant bring in a draft interim control order in accordance with these reasons by 2.15 pm on 12 September 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
YATES J:
INTRODUCTION

The applicant requests the Court to make an interim control order against the respondent, Radwan Dakkak, under s 104.4 of the Criminal Code (see the Schedule to the Criminal Code Act 1995 (Cth)) (the Code).
The request is made in circumstances where the Court made an interim control order (the first interim control order) against the respondent on 31 December 2020: Booth v Dakkak [2020] FCA 1882 (the first proceeding).
The first interim control order was made following the respondent’s conviction in the Supreme Court of New South Wales, and imprisonment, on two charges under s 102.8(1) of the Code (associating with terrorist organisations) (the Association Offences) to which the respondent had entered pleas of guilty: R v Dakkak [2020] NSWSC 1806.
As a consequence of his pleas of guilty, the respondent admitted, in respect of each charge, that: (a) he intentionally associated with another person on two or more occasions; (b) he knew that the other person was a member of, or a person who promotes or directs the activities of, an organisation; (c) the organisation was a terrorist organisation, and the respondent knew this; and (d) the association between the respondent and the other person provided support to the terrorist organisation.
The fault element for the offences is “intention” and, by pleading guilty, the respondent admitted that he intended to support each organisation, named in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McDonald v Dakkak

Details

AGLC: McDonald v Dakkak [2022] FCA 1065
Case: [2022] FCA 1065
Decision Date: 9 September 2022

CaseChat Overview and Summary

McDonald v Dakkak involved an application for an interim control order under section 104.4 of the Criminal Code against the respondent, who had previously been subject to such an order. The respondent raised concerns about specific controls that were proposed, including Control 12.3 and Control 19.2, which he argued could be inadvertently breached. Control 12.3 restricts the respondent's ability to communicate with certain individuals, while Control 19.2 prohibits him from allowing another person to access or use any computer or tablet device on his behalf. The primary legal issue before the court was whether the proposed controls were reasonably necessary, appropriate, and adapted to prevent the respondent from providing support for or facilitating a terrorist act or hostile activities abroad.

The court addressed the respondent's concerns about Control 12.3 by clarifying that the restriction would not apply in circumstances where the respondent was unaware that the person he was communicating with was a listed terrorist. Regarding Control 19.2, the court concluded that the respondent's concern about inadvertent breaches could be resolved by qualifying the control with the phrase "in circumvention of these controls." The court was satisfied that, with these qualifications, the proposed controls were reasonably necessary, appropriate, and adapted to achieve the intended purpose of preventing support for terrorism or hostile activities. The court decided to make the interim control order as proposed, with the discussed qualifications.

In its final orders, the court directed the applicant to bring in a draft interim control order in accordance with the court's reasons by a specified time on 12 September 2022. The entry of these orders is governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The applicant bring in a draft interim control order in accordance with these reasons by 2.15 pm on 12 September 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Control 19.2 prohibits the respondent from causing or permitting another person to access or use any computer or tablet device on his behalf. The respondent’s concern is that this control could be breached inadvertently if, for example, a service provider to him, such as a bank, used a computer in a transaction involving him. I do not accept that, in those circumstances, the provider would be using the computer on the respondent’s behalf. However, the respondent’s concern is readily addressed in the same way that his concern with respect to Control 12.3 is readily addressed. Control 19.2 can be qualified by adding the words “in circumvention of these controls”.CONCLUSION Subject to the qualifications to which I have referred, I am satisfied, on the material presently before me (including the factual material provided in the applicant’s affidavit and the reasons given by her) that the controls, which the respondent has addressed, are reasonably necessary, and reasonably appropriate and adapted, for the purpose of preventing the provision of support for, or the facilitation of, a terrorist act, or preventing the provision of support for, or the facilitation of, the engagement in a hostile activity in a foreign country: s 104.4(d) of the Code. I am of the same view in respect of the other proposed controls which the respondent has not specifically addressed. I will make the interim control order that is proposed with the qualifications I have discussed. I have made, separately, the programming orders discussed at the hearing on 6 September 2022.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 654 of 2022
Judgment of:	YATES J
Date of judgment:	9 September 2022
Catchwords:	CRIMINAL LAW – control orders – offence relating to terrorism - application for interim control order pursuant to s 104.4 of the Criminal Code – where respondent previously subject to interim control order
Legislation:	Criminal Code Act 1995 (Cth) Sch, ss 100.1, 102.8(1), 104.1, 104.1(c) – (d), 104.2(1), 104.3, 104.4, 104.4(1)(c)(iv), 104.4(1)(d), 104.4(2), 104.4(2A), 104.4(d), 104.5, 104.12A(1), 104.14(7)(b), 104.27, 104.28A, Ch 5, Pt 5.3, Div 104 Evidence Act 1995 (Cth) s 75
Cases cited:	Booth v Dakkak [2020] FCA 1882 McCartney v Abdirahman-Khalif (No 2) [2020] FCA 1002 McCartney v EB [2019] FCA 183; 263 FCR 170 R (Cth) v Dakkak [2022] NSWDC 181 R v Dakkak [2020] NSWSC 1806 Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	66
Date of hearing:	6 September 2022
Counsel for the Applicant:	Mr T Glover
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	The Respondent appeared in person

ORDER MADE BY:	YATES J
DATE OF ORDER:	9 SEPTEMBER 2022