Anderson v DKH18

Case [2018] FCA 1571


FEDERAL COURT OF AUSTRALIA

Anderson v DKH18 [2018] FCA 1571

File number: SAD 157 of 2018
Judge: WHITE J
Date of judgment: 19 October 2018
Catchwords: CONTEMPT OF COURT – contempt of the Australian Crime Commission punishable as contempt of Federal Court – Respondent in contempt of Australian Crime Commission by refusing to answer questions – sentence of imprisonment until further order imposed.
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 22, 24A, 28, 30, 34A(a)(ii), 34B

Securities Industry (South Australia) Code  

Cases cited:

Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139

Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24

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

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

Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393

R v Razzak [2006] NSWSC 1366; (2006) 166 A Crim R 132

Royal Commission v Staunton [1995] NSWSC 45

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

Thelander v Woodward [1981] 1 NSWLR 644

Von Doussa v Owens (No 3) (1982) 31 SASR 116

Wood, Honourable Justice v Galea [1995] NSWSC 100

Wood v Staunton (No 5) (1996) 86 A Crim R 183

Date of hearing: 5 October 2018
Registry: South Australia
Division: General Division
National Practice Area: Federal Crime and Related Proceedings
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant: Ms S Maharaj QC with Mr R Prince
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Ms L Powell QC with Mr C Jacobi
Solicitor for the Respondent: Adelaide Criminal Law

ORDERS

SAD 157 of 2018
BETWEEN:

JEFFREY PHILIP ANDERSON

Applicant

AND:

DKH18

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

19 OCTOBER 2018

THE COURT DECLARES THAT:

1.The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) on 6 June 2018, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

1.The Respondent be imprisoned until further order.

2.A warrant for the Respondent’s committal to prison be issued.

3.There be liberty to apply.

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


REASONS FOR JUDGMENT

WHITE J:

  1. By s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), persons appearing as witnesses at an examination before an examiner pursuant to s 24A are in contempt of the Australian Criminal Intelligence Commission (ACIC) if they refuse or fail to answer a question which they are required by…

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AGLC
Anderson v DKH18 [2018] FCA 1571
Case
[2018] FCA 1571
Decision Date

CaseChat Overview and Summary

In the case of Anderson v DKH18, the respondent was found to be in contempt of the Australian Crime Commission. The respondent had refused to answer questions during an examination under the Australian Crime Commission Act 2002. The matter was brought before the court for determination of the appropriate sentence for the respondent's contemptuous behaviour. The central legal issues the court needed to address included whether the contempt was serious enough to warrant imprisonment, the extent to which the respondent's prior criminal history should be considered, and what form the sentence should take.

The court considered the respondent's history of drug trafficking and the serious nature of the contempt, which involved refusing to answer six questions during a Commission examination. Despite the respondent's belated acknowledgement of his contemptuous conduct, the court determined that the contempts were severe and undermined the statutory process for obtaining criminal intelligence. The court also noted that the respondent had ample time to reflect on his actions and had not expressed any regret or contrition. Given the respondent's prior convictions and the gravity of his current contemptuous conduct, the court concluded that imprisonment was necessary. While the court exercises caution when imposing indefinite sentences, it deemed it appropriate in this instance to induce compliance with legal obligations.

The court imposed a sentence of imprisonment until further order, acknowledging the respondent's criminal history and the need to uphold the integrity of the Commission's processes. The court also issued a warrant for the respondent's committal to prison and granted liberty to apply should the respondent purge his contempts. The court's orders were designed to ensure the respondent's compliance with his legal obligations and to maintain the authority of the Australian Crime Commission.

Orders

Orders of the court

1. The Respondent be imprisoned until further order.

2. A warrant for the Respondent’s committal to prison be issued.

3. 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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent has prior criminal convictions. In about 1993, he was sentenced to imprisonment for five years with a non‑parole period of two years and six months for an offence of trafficking in drugs. In 2004, the Respondent was sentenced to imprisonment for eight years and nine months, with a non‑parole period of six years and five months, again for drug trafficking. The Respondent was released on parole for that offence in 2011. Consideration The Respondent is entitled to some credit for his belated acknowledgement of the contempts but, in the circumstances, that credit can be only slight. As I have already indicated, the Respondent’s contempts must be regarded seriously. They undermine the process put in place by the Parliament for obtaining criminal intelligence. The obligations imposed on the Respondent by the ACC Act override any private undertakings or code of conduct adopted by the Respondent in his motor cycle club. As King CJ noted in Von Doussa v Owens, no private undertaking can be regarded as an excuse for failure to comply with the legal obligation imposed by the law of the Parliament. The Respondent has had ample opportunity to reflect on the position since 6 June 2018. Even now he has not chosen to purge his contempt, let alone to make any expression of regret or contrition. The Respondent engaged in the contempts with an awareness of the consequences. Naturally, the Court exercises caution before imposing a sentence of imprisonment, and it is reluctant to impose sentences of imprisonment of indefinite duration. However, the Court should do what it can to induce the Respondent to comply with his lawful obligations. I am satisfied that a sentence of imprisonment until further order is appropriate in the present case and that is the sentence I impose. There is no scope for a form of suspension of that sentence. I will include a liberty to apply in the orders so that, in the event that the Respondent does purge his contempts, there will be the opportunity for the continuation of the Respondent’s imprisonment to be reviewed. The Court declares that:(1)The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) on 6 June 2018, he refused to answer six questions which the examiner required him to answer. The Court orders that:(1)The Respondent be imprisoned until further order.(2)A warrant for the Respondent’s committal to prison be issued.(3)There be liberty to apply.