Fogarty v Jakovac [2022] FCA 1454

Fogarty v Jakovac [2022] FCA 1454

The preconditions for granting an interim control order under s 104.4(1) of the Criminal Code are met, including that Mr Jakovac was convicted of a terrorism-related offence and the risk posed to the community is established. The suite of controls imposed is reasonably necessary, appropriate and adapted for preventing the provision of support for or facilitation of terrorist acts, given the nature of past offending, ongoing risk factors, and the absence of compelling evidence that the risk is eliminated.

Parties
Applicant: Peter Brian Fogarty; Respondent: Tyler Slavko Jakovac
Jurisdiction
Australia
Judgment Date
29 November 2022
Procedural Posture
Application for Interim Control Order / Interim Order Made at First Instance
Outcome
Application granted; interim control order made.
Legal Topics
Control Orders, Terrorism, Interim Control Order, Risk Assessment, Proportionality, Criminal Code Division 104
Criminal Law Control Orders Terrorism Interim Control Order Risk Assessment Proportionality Criminal Code Division 104

Case Brief

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Parties

Peter Brian Fogarty

Applicant

Tyler Slavko Jakovac

Respondent

Procedural Posture

Application for Interim Control Order / Interim Order Made at First Instance

Legal Issues

  1. 1 Whether preconditions for granting an interim control order under s 104.4(1) of the Criminal Code are met
  2. 2 Whether the proposed controls are reasonably necessary, appropriate and adapted for preventing support or facilitation of a terrorist act
  3. 3 Balancing risk to public with impact on respondent's circumstances

Ratio Decidendi

The preconditions for granting an interim control order under s 104.4(1) of the Criminal Code are met, including that Mr Jakovac was convicted of a terrorism-related offence and the risk posed to the community is established. The suite of controls imposed is reasonably necessary, appropriate and adapted for preventing the provision of support for or facilitation of terrorist acts, given the nature of past offending, ongoing risk factors, and the absence of compelling evidence that the risk is eliminated.

Court Disposition

Application granted; interim control order made.

Orders

  • An interim control order is made pursuant to s 104.4(1) of the Criminal Code (Cth) in the terms set out in the Schedule.
  • Controls imposed include residency, restrictions on communications, associations, possession and production of materials related to terrorism, prohibited activities, and mandatory consideration of counselling.