McDonald v Dakkak (No 2) - [2022] FCA 1578

FEDERAL COURT OF AUSTRALIA
McDonald v Dakkak (No 2) [2022] FCA 1578

File number: NSD 654 of 2022

Judgment of: WIGNEY J

Date of judgment: 9 December 2022

Date of publication of judgment: 21 December 2022

Catchwords: CRIMINAL LAW – application for interim control orders – where respondent previously convicted of various terrorism charges and interim control orders were made under s 104.4 in Part 5.3 of the Criminal Code – where conditions under ss 104.4(1)(c) and (d) of the Criminal Code satisfied – interim control orders confirmed

Legislation: Criminal Code Act 1995 (Cth) sch (The Criminal Code) ss 102.8, 104.4, 104.4(1)(c), 104.4(1)(d), 104.12A, 104.14(1A), 104.14(1A)(a), 104.14(1A)(b), 104.14(1A)(c), 104.14(3), 104.14(3A), 104.14(7)(a), 104.14(7)(b), 104.14(7)(c), 104.27(1)

Cases cited:
Booth v Dakkak [2020] FCA 1882

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

McDonald v Dakkak [2022] FCA 1065

R v Dakkak [2022] NSWDC 181

Division: General Division

Registry: New South Wales

National Practice Area: Federal Crime and Related Proceedings

Number of paragraphs: 59

Date of hearing: 9 December 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:

WIGNEY J

DATE OF ORDER: 9 DECEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to s 104.14(7)(b) of the Criminal Code (scheduled to the Criminal Code Act 1995 (Cth)), the interim control order made in relation to the respondent on 13 September 2022 be confirmed and varied in the terms set out in the Annexure to these Orders.
2.This confirmed control order be in force until and including 13 September 2023.
3.The respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn St, Sydney NSW between 9.00am to 4.00pm, Monday to Friday in order to obtain a copy of these Orders.

THE COURT NOTES THAT:
4.This confirmed control order relates to the Respondent, Radwan Dakkak.
5.It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism or a terrorist act (s 104.4(1)(c)(iv) of the Criminal Code).
6.It 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:
(a)protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); or
(b)preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)
WIGNEY J:

On 9 September 2022, the Court made an interim control order (ICO) pursuant to s 104.4 of the schedule to the Criminal Code Act 1995 (Cth) (The Criminal Code) against the respondent, Mr Radwan Dakkak: McDonald v…

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 (No 2)

Details

AGLC: McDonald v Dakkak (No 2) [2022] FCA 1578
Case: [2022] FCA 1578
Decision Date: 9 December 2022

CaseChat Overview and Summary

The case of McDonald v Dakkak (No 2) concerns an application for the confirmation of interim control orders against Radwan Dakkak. Dakkak had previously been convicted of associating with a terrorist organisation and contravening a control order. The application for the confirmation of the interim control orders was made by Ms McDonald, an officer of the Australian Federal Police. The primary legal issue before the court was whether the conditions for confirming the interim control orders had been met under sections 104.14 and 104.12 of the Criminal Code. The court found that all the necessary conditions had been satisfied.

The court first considered whether an interim control order had been made in relation to Dakkak, and whether an election to confirm the order had been made by the relevant officer of the Australian Federal Police. The court was satisfied that both conditions had been met. The court then considered whether the conditions outlined in sections 104.12 and 104.12A of the Criminal Code had been complied with. This included whether the obligations, prohibitions and restrictions imposed on Dakkak were reasonably necessary and appropriate for protecting the public from a terrorist act or preventing the provision of support for or the facilitation of a terrorist act. The court was satisfied that these conditions had been met.

The court confirmed the interim control orders with a slight variation to one of the controls. The confirmed control order will be in force until 13 September 2023. The court also allowed the respondent’s lawyer to attend the Australian Federal Police Sydney office to obtain a copy of the orders.

Orders

Orders of the court

1. Pursuant to s 104.14(7)(b) of the Criminal Code (scheduled to the Criminal Code Act 1995 (Cth)), the interim control order made in relation to the respondent on 13 September 2022 be confirmed and varied in the terms set out in the Annexure to these Orders.

2. This confirmed control order be in force until and including 13 September 2023.

3. The respondent’s lawyer may attend the AFP Sydney office at 110 Goulburn St, Sydney NSW between 9.00am to 4.00pm, Monday to Friday in order to obtain a copy of these Orders.

THE COURT NOTES THAT:

4. This confirmed control order relates to the Respondent, Radwan Dakkak.

5. It is satisfied on the balance of probabilities that the Respondent has been convicted in Australia of an offence relating to terrorism or a terrorist act (s 104.4(1)(c)(iv) of the Criminal Code).

6. It 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:

(a) protecting the public from a terrorist act (s 104.4(1)(d)(i) of the Criminal Code); or

(b) preventing the provision of support for or the facilitation of a terrorist act (s 104.4(1)(d)(ii) of the Criminal Code).

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

Background

Background to the litigation

For the reasons that follow, I am satisfied that all the requirements for confirming the ICO have been satisfied and that the ICO should be confirmed, though with a slight variation to one of the controls. BACKGROUND TO THE APPLICATION The background to this application is spelled out in detail in the ICO Judgment. This judgment should be read in conjunction with that judgment. Following is a very short summary of the relevant background facts. On 18 December 2020, Mr Dakkak was convicted of two offences of associating with a terrorist organisation contrary to s 102.8 of the Code. The offences involved Mr Dakkak associating with a number of people who he knew were members of, or directed the activities of, a terrorist organisation known as Islamic State. On 31 December 2020, the Court made an interim control order (the first ICO) against Mr Dakkak: Booth v Dakkak [2020] FCA 1882. On 5 February 2021, Mr Dakkak was charged with an offence of contravening a control order contrary to s 104.27(1) of the Code and was remanded in custody. He was convicted of that offence on 11 April 2022 and sentenced to a period of imprisonment: R v Dakkak [2022] NSWDC 181. That period of imprisonment ended on 15 September 2022. The circumstances of the offence were that Mr Dakkak searched for, accessed, viewed and downloaded online extremist materials in contravention of the ICO then in place. The ICO the subject of this confirmation application was made on 9 September 2022, shortly before Mr Dakkak was released from custody. CONDITIONS THAT MUST BE SATISFIED BEFORE THE COURT CAN CONFIRM AN ICO UNDER S 104.14(7) OF THE CODE For s 104.14 of the Code to apply, three conditions must be satisfied: s 104.14(1A) of the Code. First, an ICO has been made in relation to a person: s 104.14(1A)(a) of the Code. Second, an election under s 104.12A to confirm the order has been made: s 104.14(1A)(b) of the Code. Third, the Court is satisfied on the balance of probabilities that s 104.12 and s 104.12A(2) have been complied with in relation to the order: s 104.14(1A)(c) of the Code. As will be seen, s 104.12 and s 104.12A include a number of separate conditions and requirements, some fairly formal and others not so formal.The first and second conditions: ss 104.14(1A)(a) and (b) I am satisfied that the conditions in ss 104.14(1A)(a) and (b) have been satisfied in this case. As has already been noted, an ICO order was made against Mr Dakkak on 9 September 2022. As for the election, s 104.12A(1) of the Code provides that at least 48 hours before the day specified in the ICO as the date on which the person may attend court for the court to confirm, revoke or declare the ICO to be void, the senior AFP officer who requested the ICO must elect whether to confirm the order and give a written notification of the election to the issuing court. There is evidence that on 17 November 2022, Ms McDonald signed a notification of an election to confirm the ICO made in relation to Mr Dakkak: annexures AO-1 and AO-2 to the affidavit of Aydin Ozden dated 6 December 2022 (Ozden 2). The third condition: compliance with s 104.12 and s 104.12A(2) of the Code

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am satisfied as mentioned in s 104.4(1)(d) of the Code in respect of the orders proposed by Ms McDonald in their entirety.CONCLUSION IN RELATION TO CONFIRMATION I am satisfied that the relevant conditions that must be satisfied before s 104.14 applies have been satisfied or complied with. On the basis of the evidence adduced and the submissions made in accordance with s 104.14(1) of the Code, I am also satisfied “as mentioned in” ss 104.4(1)(c) and (d) of the Code. I therefore propose to make an order pursuant to s 104.14(7)(c) of the Code confirming the ICO with the proposed variation to control order 6.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 654 of 2022
Judgment of:	WIGNEY J
Date of judgment:	9 December 2022
Date of publication of judgment:	21 December 2022
Catchwords:	CRIMINAL LAW – application for interim control orders – where respondent previously convicted of various terrorism charges and interim control orders were made under s 104.4 in Part 5.3 of the Criminal Code – where conditions under ss 104.4(1)(c) and (d) of the Criminal Code satisfied – interim control orders confirmed
Legislation:	Criminal Code Act 1995 (Cth) sch (The Criminal Code) ss 102.8, 104.4, 104.4(1)(c), 104.4(1)(d), 104.12A, 104.14(1A), 104.14(1A)(a), 104.14(1A)(b), 104.14(1A)(c), 104.14(3), 104.14(3A), 104.14(7)(a), 104.14(7)(b), 104.14(7)(c), 104.27(1)
Cases cited:	Booth v Dakkak [2020] FCA 1882 McCartney v EB (2019) 263 FCR 170; [2019] FCA 183 McDonald v Dakkak [2022] FCA 1065 R v Dakkak [2022] NSWDC 181
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	59
Date of hearing:	9 December 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:	WIGNEY J
DATE OF ORDER:	9 DECEMBER 2022