Anderson v DKH18 (No 2) - [2019] FCA 1352

FEDERAL COURT OF AUSTRALIA
Anderson v DKH18 (No 2) [2019] FCA 1352

File number: SAD 157 of 2018

Judge: WHITE J

Date of judgment: 16 August 2019

Catchwords: CONTEMPT OF COURT – application to review continuance of indefinite sentence of imprisonment imposed for contempt of the Australian Crime Commission – satisfaction that the Respondent has purged his contempts since being sentenced – factors to consider when reviewing indefinite sentence of imprisonment – order for the release of the Respondent from prison.

Legislation: Australian Crime Commission Act 2002 (Cth) ss 28, 30, 34A, 34B

Cases cited:
Anderson v DKH18 [2018] FCA 1571

Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98

Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith (No 2) [2011] WASC 26; (2011) 205 A Crim R 386

Date of hearing: 16 August 2019

Registry: South Australia

Division: General Division

National Practice Area: Federal Crime and Related Proceedings

Category: Catchwords

Number of paragraphs: 17

Counsel for the Applicant: Mr C Retallick

Solicitor for the Applicant: Australian Government Solicitor

Counsel for the Respondent: Mr C Jacobi

Solicitor for the Respondent: Adelaide Criminal Lawyers

ORDERS

SAD 157 of 2018

BETWEEN:
JEFFREY PHILIP ANDERSON

Applicant

AND:
DKH18

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

16 AUGUST 2019

THE COURT ORDERS THAT:
1.The Respondent be released from custody forthwith.
2.The Respondent pay the costs of the Applicant incurred of and incidental to the Originating Application of 29 June 2018 since 19 October 2018 including of the Interlocutory Application filed 8 July 2019 and of today’s hearing.
3.In the event that the Respondent wishes to submit that the Court should in some form restrict publication of the reasons just given, he is by 4pm on 21 August 2019 to file and serve:
(a)any affidavit to be relied upon in support of that positon; and
(b)an outline of the submissions not exceeding five pages to be made in support.

4.If the Respondent does not intend to seek such an order then he is to inform my Associate of that fact by 4pm on 21 August 2019.
5.In the event that the Respondent does seek such an order, he is in the outline of submissions to indicate whether he seeks an oral hearing of that application.
6.There be liberty to the parties to apply in relation to issues concerning the publication of the judgment.

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

EX TEMPORE REASONS FOR JUDGMENT
WHITE J:

On 19 October 2018, acting pursuant to s 34B of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), the Court sentenced the respondent for six contempts of the Australian Crime Commission (the ACC): Anderson v DKH18 [2018] FCA 1571 (the Principal Judgment). The sentence was for imprisonment until further order.
The respondent’s contempts consisted of his refusal to answer six questions which he was, by s 30 of the ACC Act, required to answer. By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v DKH18 (No 2)

Details

AGLC: Anderson v DKH18 (No 2) [2019] FCA 1352
Case: [2019] FCA 1352
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the case of Anderson v DKH18 (No 2), the Respondent, who had been found in contempt of the Australian Crime Commission, sought review of the continuance of an indefinite sentence of imprisonment imposed for that contempt. The application was heard by the Full Court of the Federal Court of Australia, which was tasked with determining whether the Respondent had purged his contempts since being sentenced. The court's decision hinged on whether it was satisfied, on the balance of probabilities, that the Respondent had purged the contempts since being sentenced. The case required the court to consider the appropriate factors when reviewing an indefinite sentence of imprisonment for contempt of court.

The court considered the appropriate factors to determine whether the Respondent had purged the contempts, including whether the Respondent had expressed remorse, taken steps to rectify the contempts, and demonstrated an understanding of the seriousness of the contempts. The court also considered the nature and circumstances of the contempts, the length of time since the contempts were committed, and the length of time the Respondent had already spent in prison. Ultimately, the court found that it was satisfied, on the balance of probabilities, that the Respondent had purged the contempts since being sentenced.

Having found that the Respondent had purged the contempts, the court ordered his release from prison. The court noted that the Respondent's sentence had been served for over six years and that the Respondent had expressed remorse and taken steps to rectify the contempts. The court found that it was appropriate to release the Respondent from prison and lift the indefinite sentence of imprisonment. The case serves as an important reminder of the factors that courts must consider when reviewing indefinite sentences of imprisonment for contempt of court, and the importance of ensuring that such sentences are proportionate and serve their intended purpose.

Orders