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

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

The respondent's affidavit and oral evidence, which the Court accepted as true and genuine, established that he was a changed person in materially different circumstances, with insight, social engagement, counselling, employment and family support. The risk of relapse into the conduct feared by the applicant was remote and most unlikely, so the threshold of risk necessary to confirm the interim control order with variations was not established; the interim control order was no longer justified and was revoked.

Jurisdiction
Australia
Judgment Date
16 March 2023
Procedural Posture
Federal Crime and Related Proceedings; Control Order Confirmation Hearing / Hearing on Election Under S 104.12 a of the Criminal Code (cth) to Confirm an Interim Control Order With Variations
Outcome
Interim control order revoked; applicant ordered to pay the respondent's costs of and incidental to the control order confirmation hearing as agreed or assessed.
Legal Topics
['interim Control Order' 'terrorism Related Offence' 'risk of Reoffending' 'confirmation, Variation or Revocation of Control Order']
['criminal Law' 'federal Crime and Related Proceedings'] ['interim Control Order' 'terrorism Related Offence' 'risk of Reoffending' 'confirmation, Variation or Revocation of Control Order']

Case Brief

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Procedural Posture

Federal Crime and Related Proceedings; Control Order Confirmation Hearing / Hearing on Election Under S 104.12 a of the Criminal Code (cth) to Confirm an Interim Control Order With Variations

Legal Issues

  1. 1 ['Whether the interim control order made on 29 November 2022 should be confirmed with variations, declared void, or revoked.' "Whether residual risks arising from the respondent's past conduct and present circumstances justified continuation of a control order regime." 'Whether the risk of the respondent relapsing into past terrorism-related conduct met the threshold for final control orders.']

Ratio Decidendi

The respondent's affidavit and oral evidence, which the Court accepted as true and genuine, established that he was a changed person in materially different circumstances, with insight, social engagement, counselling, employment and family support. The risk of relapse into the conduct feared by the applicant was remote and most unlikely, so the threshold of risk necessary to confirm the interim control order with variations was not established; the interim control order was no longer justified and was revoked.

Court Disposition

Interim control order revoked; applicant ordered to pay the respondent's costs of and incidental to the control order confirmation hearing as agreed or assessed.

Orders

  • ['The interim control order made on 29 November 2022 be revoked.' "The applicant pay the respondent's costs of and incidental to the control order confirmation hearing as agreed or assessed."]