Federal Court of Australia

Fogarty v Jakovac (No 2) [2023] FCA 234

ORDERS

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:

1    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.

2    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.

3    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.

4    Detective Superintendent Fogarty’s case for confirmation of the ICO, with limited variations, supported by a second affidavit from him, is that the risk previously identified, although accepted to have been reduced, remains at a sufficiently high level to meet the necessary threshold for final control orders to be made. In that event, the orders would ordinarily be in place until 28 November 2023, being the eve of the anniversary of the making of the ICO.

5    Detective Superintendent Fogarty submits that residual risks remain, arising from both the history of Mr Jakovac’s conduct and the evidence of his present circumstances, which include what is described as his substantial volume of online activity, his ongoing susceptibility to malign influences, and the inappropriate interest of others in him. The substance of the case for the confirmation of a variation of the ICO is really that of a material risk that Mr Jakovac will relapse into past conduct of the kind that resulted in his prior offending and imprisonment, so as to justify the continuation of a control order regime to mitigate that risk.

6    Mr Jakovac submits that there is no longer any real risk of the kind previously identified, and no real risk of a relapse of the kind feared by Detective Superintendent Fogarty. He points to the following in particular:

(a)    his unchallenged evidence that he has:

(i)    actively engaged with the Centre for Violent Extremism and the progress that has been made;

(ii)    undertaken counselling sessions with a psychologist, including recently changing from a female to male psychologist who is more available and with whom he is making good progress;

(iii)    maintained steady employment at a hospitality business that employs about a dozen other people, including his sister and brother;

(iv)    very good prospects of moving to Melbourne to take on an apprenticeship with the husband of a cousin, with a successful trial period of employment already having taken place;

(v)    plans to live in Melbourne with an uncle, who is supportive of him;

(vi)    found that the ICOs have restricted his progress;

(vii)    left his prior beliefs and behaviours behind him, and is now a completely different person, no longer socially isolated and living only in an online world, and no longer a part of the extremist right wing community;

(viii)    now obtained the benefits of counselling and other help, and has abandoned the racist beliefs he once held, including those of white supremacy, now working and socialising with people from other races and backgrounds, and becoming used to giving to and getting respect from others;

(b)    his sound approach in reporting to police and surrendering a bayonet that was sent to him (which I note was most unlikely to have been detected had he not done so) and in blocking and not responding to two approaches that were made to him by people who knew about his prior offence, paying heed to a warning from the AFP about such approaches.

7    As [26] of the ICO judgment reproduced above indicates, the problem for Mr Jakovac at the time of the ICO hearing was that he did not give any evidence to indicate that the identified a historic basis for the risk that I was satisfied existed had fallen away or otherwise dissipated. I rather suspect that, at that time, he was in no real state of mind to do so. He presented in court as being highly agitated and overwhelmed. That was remedied today.

8    I was concerned at making the necessary risk assessment, and whether it had dissipated, based on no more than Mr Jakovac’s affidavit evidence, without hearing from him, and that the positive statements he made would be unable to be adequately evaluated. However, Mr Jakovac gave oral evidence supplementary to, and confirmatory of, his affidavit, and was cross-examined to a limited extent. Even since I observed him in the courtroom on 29 November 2022, he seemed to me to have visibly matured and to be more settled and composed.

9    Mr Jakovac answered questions in chief and in cross-examination responsively and without any apparent guile or artifice. He was frank and forthright. I am satisfied that his affidavit and oral evidence is true and genuine. I accept that he is a changed person and that he now has a bright future ahead of him, with ample positive support from his immediate and extended family, and from his present employment and future good employment prospects. He is now in entirely different circumstances to those which prevailed when he started the conduct leading to his offending almost three years ago, at the age of 18 years of age, now being 21. He is now socially engaged rather than isolated, and refers to having friends. While still a young man, he has matured and developed substantially. He seems to have real insight into his past conduct and future prospects. He credibly deposed to excitement about the new life that he wants to embark upon, while being apparently realistic and not fanciful. His evidence amply supported the submissions made on his behalf.

10    I am satisfied that the risk of a relapse of the type feared by Detective Superintendent Fogarty is now remote and most unlikely to take place. That is not to say that there can be any guarantee in that regard, but Mr Jakovac, while bearing no onus, has done enough to satisfy me that the inferential threshold of risk necessary for the confirmation of a variation of the ICO has not been established. In reaching that conclusion, I gave anxious consideration to whether some part of the control orders should remain in place. However, I have reached the firm conclusion that while they were properly justified at the time the ICO was made, and have usefully contributed to the point that has been reached today, they have now reached the point of not only no longer being justified, but potentially of being counterproductive. It is for Mr Jakovac now to put his past behind him.

11    In all the circumstances, rather than confirm the ICO with variations as sought by Detective Superintendent Fogarty, I revoke it.

Associate:

Dated:    17 March 2023