Anderson v BYF19

Case [2019] FCA 1959

FEDERAL COURT OF AUSTRALIA

Anderson v BYF19 [2019] FCA 1959

File number: NSD 745 of 2019
Judge: ABRAHAM J
Date of judgment: 22 November 2019
Catchwords: CONTEMPT OF COURT  – sentencing – contempt of the Australian Criminal Intelligence Commission – contempt punishable as contempt of Federal Court – respondent in contempt by refusing to answer questions in examination – where respondent pleaded guilty – where respondent did not subsequently purge contempts despite opportunities to do so – fixed term of imprisonment imposed
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 20, 21, 22, 28, 30, 34A, 34B

Criminal Code 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) s 31

Federal Court Rules 2011 (Cth) Part 42

Cases cited:

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Anderson v DKH18 [2018] FCA 1571

Anderson v XLVII [2015] FCA 19

Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24

Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809

Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26

DAB v R [2010] NSWCCA 275

Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323

Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366

Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501

Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90

Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494

Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369

R v Drever [2010] SASCFC 27

R vHinchliffe [2013] NSWCCA 327

R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174

Sage v ZZ (No 2) [2015] FCA 450; (2015) 234 FCR 251

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567

Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596

Von Doussa v Owens (No 3) (1982) 31 SASR 116
Date of hearing: 15 October 2019
Registry: New South Wales
Division: General Division
National Practice Area: Federal Crime and Related Proceedings
Category: Catchwords
Number of paragraphs: 86
Solicitor for the Applicant: Mr C Hutchins of Australian Government Solicitor
Counsel for the Respondent: Avni Djemal
Solicitor for the Respondent: Zahr Partners

ORDERS

NSD 745 of 2019
BETWEEN:

MR JEFFREY PHILIP ANDERSON, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant
AND:

BYF19

Respondent

JUDGE:

ABRAHAM J

DATE OF ORDER:

22 NOVEMBER 2019

THE COURT DECLARES THAT:

1.The respondent is guilty of the charge of contempt of the Australian Crime Intelligence Commission (formerly the Australian Crime Commission) in that,…

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AGLC
Anderson v BYF19 [2019] FCA 1959
Case
[2019] FCA 1959
Decision Date

CaseChat Overview and Summary

The applicant, represented by [REDACTED], sought a sentence against the respondent, represented by [REDACTED], for being in contempt of the Australian Criminal Intelligence Commission (ACIC). The dispute arose from the respondent’s refusal to answer questions posed to him during an examination under the Australian Criminal Intelligence Commission Act 2005 (ACC Act). The case was heard in the Federal Court of Australia.

The court had to determine the appropriate sentence for the respondent’s contempt of the ACIC. The key issue was whether the contempt was serious enough to warrant a custodial sentence, given the respondent’s refusal to answer questions during the examination and his failure to purge the contempt despite multiple opportunities.

The court found that the contempt was serious, as it undermined the effectiveness of the statutory scheme that authorised the compulsory examinations. The respondent's refusal to answer questions was deliberate, and he had been given ample opportunity to take legal advice. The court noted that fear of retribution was rarely a mitigating factor and that such fears would seriously inhibit the efficacy of the powers conferred by the ACC Act. Given these considerations, the court imposed a fixed term of imprisonment for 8 months, to be released after serving 4 months, with the remainder of the sentence suspended on the condition that the respondent be of good behaviour for 2 years.

The court further ordered that a warrant for the respondent’s committal to prison be issued, with the custodial period to commence from 22 November 2019 and expire on 21 March 2020. The respondent was also required to pay the applicant’s costs of the application. The orders previously made prohibiting the publication of the respondent’s name and suppressing access to the court file were to continue. The parties were granted liberty to apply in certain circumstances.

Orders

Orders of the court

1. The respondent is imprisoned for a period of 8 months, to be released after serving 4 months, the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

2. The custodial period of 4 months imprisonment to date from 22 November 2019 to 21 March 2020, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on 22 March 2020 and expiring on 21 March 2022.

3. A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.

4. The parties be at liberty to apply in the event that the respondent purges his contempt before the expiration of the period of 4 months imprisonment.

5. The applicant have liberty to apply in relation to the execution of the remainder of the sentence, if after being released on that condition, the respondent does not comply with it.

6. The orders previously made prohibiting the publication of the respondent’s name, and suppressing access to the court file are to continue.

7. The respondent is to pay the applicant’s costs of the application to be assessed if not agreed.

8. There be liberty to apply.

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

Background

Background to the litigation

The above material was admitted without objection. In addition, the parties provided a joint statement of facts. The applicant also provided what, in effect, was a court book with the relevant material, including comparable authorities for the purpose of sentencing and a table summarising the same decisions entitled “Aide [Memoire] re Comparative sentences”. Statutory and regulatory background The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c). The Board of ACIC has issued a number of determinations about high risk and emerging drugs and has determined they are special operations. Relevantly, on 21 June 2017, the Board issued a determination pursuant to s 7C of the ACC Act entitled, “Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 3) 2017” (HRED3 Determination). The HRED3 Determination authorised an intelligence operation to determine whether certain persons, in concert with one another or with other persons, may have engaged in federally relevant criminal activity, including serious drug offences contrary to Part 9.1 of The Criminal Code (Cth)(Criminal Code). A project named Project Baystone is being conducted under the HRED3 Determination. The federally relevant criminal activity that is being investigated relates to the illicit drug markets for methylamphetamine, cocaine, MDMA and heroin, and the aim of Project Baystone, is to monitor those drug markets and resolve intelligence gaps in relation to those markets. Project Baystone is ongoing. In carrying out these functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 20-22. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30. It is evident that the examination of persons by examiners, such as the respondent in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: Anderson v DKH18 [2018] FCA 1571 (DKH18) at [6]; Anderson v XLVII [2015] FCA 19 (XLVII) at [15]. Persons appearing as witnesses at an examination before an ACIC examiner are in contempt of the ACIC if they refuse or fail to answer a question which they are required to answer by the examiner: s 34A(a)(ii). If an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to this Court for the person to be dealt with in relation to the contempt: s 34B(1)(a).

Evidence

Evidence Before The Court

For the reasons set out below, I am satisfied that a fixed sentence of imprisonment is appropriate in the present case and I impose a term of 8 months imprisonment to be released after serving 4 months, the remainder of the sentence to be suspended on the condition the respondent be of good behaviour for a period of 2 years.Evidence In support of the application the applicant relied on the following material:(1)originating application dated 9 May 2019;(2)statement of charge dated 9 May 2019;(3)affidavit of [REDACTED] sworn 6 May 2019;(4)affidavit of Shane Douglas Neilson sworn 12 July 2019;(5)supplementary affidavit of Shane Douglas Neilson sworn 8 October 2019;(6)affidavit of Cameron Hutchins sworn 8 October 2019; (7)outline of submissions dated 22 July 2019; and(8)outline of submissions in reply dated 8 October 2019. The respondent relied on the following:(1)expert report of [REDACTED];(2)expert report of Megan Godbee (Forensic Psychologist) dated 25 September 2019;(3)witness statement of the respondent dated 26 September 2019; (4)an affidavit of [REDACTED] affirmed 27 September 2019; (5)an affidavit of [REDACTED] affirmed 27 September 2019; and(6)outline of submissions dated 26 September 2019. The above material was admitted without objection. In addition, the parties provided a joint statement of facts. The applicant also provided what, in effect, was a court book with the relevant material, including comparable authorities for the purpose of sentencing and a table summarising the same decisions entitled “Aide [Memoire] re Comparative sentences”. Statutory and regulatory background The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c). The Board of ACIC has issued a number of determinations about high risk and emerging drugs and has determined they are special operations. Relevantly, on 21 June 2017, the Board issued a determination pursuant to s 7C of the ACC Act entitled, “Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 3) 2017” (HRED3 Determination). The HRED3 Determination authorised an intelligence operation to determine whether certain persons, in concert with one another or with other persons, may have engaged in federally relevant criminal activity, including serious drug offences contrary to Part 9.1 of The Criminal Code (Cth)(Criminal Code). A project named Project Baystone is being conducted under the HRED3 Determination. The federally relevant criminal activity that is being investigated relates to the illicit drug markets for methylamphetamine, cocaine, MDMA and heroin, and the aim of Project Baystone, is to monitor those drug markets and resolve intelligence gaps in relation to those markets. Project Baystone is ongoing.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In any event, I note that the considerations to be taken into account on sentence for contempt, as illustrated by the non-exhaustive list referred to above, are not relevantly different from those applied in the sentencing of Commonwealth offences. Moreover, the range of sentences available, are necessarily limited by s 34B(5) of the ACC Act. Consideration There is no doubt that in the context of the statutory scheme, this offence of contempt is properly characterised as serious. The respondent’s approach in refusing to answer questions undercuts the effectiveness of the scheme which authorises these compulsory examinations. Indeed, as remarked upon in previous cases, the examination processes would be hamstrung if all witnesses adopted the approach that the respondent has taken. The investigations of which the examination was a part, are of significant importance to the protection of the broader community. The serious impact on the community of illicit drug use and supply, and associated crime is uncontentious. General deterrence must necessarily play a prominent role in any such sentence. These contempts were deliberate. The respondent was repeatedly informed of the consequences of his refusal to answer the questions and given every opportunity to take legal advice and to consider that advice, with the hearing being adjourned specifically for that reason on more than one occasion. The respondent was represented by counsel and a solicitor. The respondent’s explanation for refusing to answer these questions is a fear for his family for potential retribution. This fear was a generalised fear, as the respondent did not identify any specific threat. To the contrary, the respondent said there had been no threat made to his family. The respondent confirmed during the examination that no-one but his lawyers were aware of his attendance before the ACIC. The respondent’s submission on sentence was that the same fears that motivated him to decline to answer questions that would implicate the owners of the money, would also motivate him to not specify the source of those fears. However, that was not the respondent’s explanation during the examination and is inconsistent with the answer actually given, that there had been no threat to his family. Fear of retribution is a matter that will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43]. Relevantly, in Hannaford (No. 2) at [33], Dodds-Streeton J referred to the comments of Martin CJ in Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26 (Allbeury (No 2)) at [33]:His Honour also considered that as it was inherently probable that those summoned to give evidence would claim to fear retribution if they co-operated “it would seriously inhibit the efficacy of the powers conferred by Pt 4 of the CCC Act, and the achievement of the important public policy objective underpinning the conferral of those powers, if an asserted fear of retribution were to be given significant mitigating weight when sentence is passed…”