Anderson v EVA20
[2022] FCA 1165
•19 August 2022
FEDERAL COURT OF AUSTRALIA
Anderson v EVA20 [2022] FCA 1165
File number: SAD 167 of 2020 Judgment of: WIGNEY J Date of judgment: 19 August 2022 Catchwords: CONTEMPT OF COURT – where respondent was convicted of contempt of the Australian Criminal Intelligence Commission – where contempt punishable as contempt of the Federal Court – where respondent refused to answer questions in an examination before an examiner – where respondent pleaded guilty to charges of contempt of the Australian Criminal Intelligence Commission pursuant to s 34A of the Australian Crime Commission Act 2002 (Cth) – where respondent was sentenced to imprisonment until further order – where respondent filed an interlocutory application seeking an order that the Federal Court determine the term of imprisonment imposed for contempt – relevant principles in relation to revisiting interlocutory orders – consideration of relevant principles in determining the appropriate punishment for contempt – where a fixed term of imprisonment found to be appropriate Legislation: Australian Crime Commission Act 2002 (Cth) ss 7C(2), 28, 34A(ii), 34B(1), 34B(2), 34B(4)
Sentencing Act 1989 (NSW)
Sentencing Act 2017 (SA) s 93(a)
Cases cited: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Anderson v BYF19 [2019] FCA 1959
Anderson v EVA20 [2021] FCA 457
Anderson v GPY18 [2019] FCA 954
Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19
HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270; [2021] VSCA 200
Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115
Lusty v CRA20 [2020] FCA 1737
Von Doussa v Owens (No 3) (1982) 31 SASR 116
Wood v Galea (1995) 79 A Crim R 567
Wood v Galea (1996) 84 A Crim R 274
Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division Registry: South Australia National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 74 Date of hearing: 19 August 2022 Counsel for the Applicant: Mr P H d’Assumpção Solicitor for the Applicant: Australian Criminal Intelligence Commission Counsel and Solicitor for the Respondent: Mr N Vadasz of Vadasz Lawyers ORDERS
SAD 167 of 2020 BETWEEN: JEFFREY PHILIP ANDERSON
Applicant
AND: EVA20
Respondent
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
19 AUGUST 2022
THE COURT ORDERS THAT:
1.Order 2 of the orders made by Besanko J on 6 May 2021 that the respondent be imprisoned until further order be vacated.
2.The respondent, EVA20, be sentenced to imprisonment for 15 months and 14 days for the contempts of which he has been convicted, with that term of imprisonment to commence on 6 May 2021 and expire on 19 August 2022.
3.A non-publication order be made in respect of the transcript produced for the hearing on 19 August 2022 so that any reference to the name of the applicant in the proceeding is redacted.
4.On the question of costs, the respondent may file written submissions, not exceeding two pages, within 14 days of the date of this order.
5.The applicant may file written submissions, not exceeding two pages, within 7 days of receiving any submissions filed in accordance with order 4.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
On 6 May 2021, Besanko J found the respondent in this matter, who has been given the pseudonym EVA20, guilty of contempt of the Australian Criminal Intelligence Commission (ACIC) pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). EVA20 was found to be in contempt of the ACIC because, when appearing as a witness at an examination before an examiner pursuant to the ACC Act, he refused to answer six questions that the examiner required him to answer. Besanko J ordered, amongst other things, that EVA20 be imprisoned until further order: see Anderson v EVA20 [2021] FCA 457 (the contempt judgment).
On 4 May 2022, EVA20 filed an interlocutory application in which he sought an order that the Court determine the term of his imprisonment for contempt. That application was opposed.
It is, for the reasons that follow, appropriate to fix a term of imprisonment in respect of EVA20’s conviction for contempt. The appropriate sentence is a term of imprisonment of 15 months and 14 days, commencing on 6 May 2021, being the day on which EVA20 was first sentenced by Besanko J. The result is that the term of imprisonment for the appellant’s conviction for contempt will end today. As will be explained, that does not mean that EVA20 will be released from custody today. Rather, it means that the sentence imposed on him by a judge of the District Court of South Australia in respect of his conviction for various Commonwealth offences will effectively commence from today.
EVA20’S CONVICTION FOR CONTEMPT AND THE SENTENCE IMPOSED
The background to EVA20’s conviction of contempt of the ACIC is detailed in the contempt judgment. This judgment should be read in conjunction with the contempt judgment. What follows is but a thumbnail sketch of the relevant facts and circumstances.
On 26 February 2020, officers of the Australian Federal Police (the AFP) apprehended EVA20 as he was leaving his parents’ house in his car. When apprehended, he was in possession of an item of international mail. That item of mail had earlier been intercepted by officers of the AFP who had removed an amount of methylamphetamine and replaced it with an inert substance. The police also located some methamphetamine and $43,950 in cash in EVA20’s car. During a later search of EVA20’s house, the police located more methamphetamine, a quantity of cocaine and $81,435 in cash.
On 28 July 2020, the board of the ACIC made a determination under s 7C(2) of the ACC Act which authorised a special investigation under the ACC Act. That special investigation was an intelligence operation in relation to specified criminal activity. The determination defined the specified criminal activity in very broad and expansive terms. Broadly speaking, the relevant criminal activity was activity related to the importation of and trafficking in prohibited drugs.
On 31 August 2020, the applicant, Mr Jeffrey Anderson, an ACIC examiner (the examiner) issued a summons to EVA20 pursuant to s 28 of the ACC Act. That summons required EVA20 to appear and give evidence before an examiner on 10 September 2020. EVA20 complied with that summons and appeared before an examiner on 10 September 2020. He was represented by a lawyer. During the course of the examination, EVA20 refused to answer six questions. Those questions essentially related to his arrest, or the circumstances of his arrest, on 26 February 2020. The six questions that EVA20 refused to answer were as follows:
When you were arrested, were you in possession of an international mail item?
Did that item contain methamphetamine?
At the time of your arrest, were you driving a [REDACTED make of motor vehicle]?
… so from a search of that vehicle the AFP located … forty three thousand, nine hundred and fifth dollars ($43,950.00) and a quantity of methamphetamine. Was the money that was located yours?
Was the methamphetamine that was located yours?
… A search of your residence at [REDACTED residential address] located eighty one thousand four hundred and thirty-five dollars ($81,435.00), a quantity of cocaine and a quantity of methamphetamine. Was the cocaine that was located yours?
Subsection 34A(a)(ii) of the ACC Act provides as follows:
A person is in contempt of the ACC if he or she:
(a) when appearing as a witness at an examination before an examiner:
(i) …
(ii)refuses or fails to answer a question that he or she is required to answer by the examiner;
Subsection 34B(1) of the ACC Act provides that an examiner who is of the opinion that, during an examination before the examiner, a person is in contempt of the ACIC, may apply to this Court for the person to be dealt with in relation to the contempt. Subsection 34B(2) provides that, before making such an application, the examiner must inform the person that the examiner proposes to make the application.
At the examination of EVA20 on 10 September 2020, the examiner informed EVA20, in accordance with s 34B(2), that he proposed to make an application to the Court pursuant to s 34B(1) of the ACC Act.
On 16 October 2020, EVA20 was served with a certificate pursuant to s 34B(4) of the ACC Act which set out the grounds of the proposed application to the Court in respect of his refusal to answer questions at the examination.
On 20 October 2020, the examination of EVA20 resumed. EVA20 maintained his refusal to answer the six questions referred to earlier.
The examiner commenced proceedings in this Court against EVA20 for contempt on 18 November 2020.
An ACIC solicitor corresponded with EVA20’s solicitor in February 2021 and invited EVA20 to purge his contempt. EVA20’s solicitor advised that EVA20 did not wish to purge his contempt.
EVA20’s examination has been adjourned from time to time since his refusal to answer the relevant questions.
EVA20 entered pleas of guilty to six charges of contempt when he appeared before Besanko J on 5 February 2021. A penalty hearing was conducted on 6 May 2021. It would appear that EVA20 adduced no evidence during the penalty hearing. The submissions that were advanced on EVA20’s behalf also appeared to be sparse at best. Importantly, EVA20 did not proffer any reason for his refusal to answer the examiner’s questions. Nor did he offer an apology or express any contrition.
Following the penalty hearing, EVA20’s legal representative made further submissions, or endeavoured to make further submissions, in which it was suggested that EVA20’s reasons for not answering the questions were related to a concern he had for the safety of his family. EVA20 did not, however, adduce any evidence to support that submission.
At the time of the penalty hearing, EVA20 was awaiting trial in the District Court of South Australia in respect of charges arising from his possession of drugs and cash at the time he was apprehended by the police in February 2020.
Having considered the evidence and entertained the submissions of the parties, Besanko J found EVA20 guilty of contempt and ordered that he be imprisoned until further order. His Honour’s reasons for imposing that order included that: EVA20’s acts of contempt were very serious; EVA20 was “aware of the consequences of his conduct” and that he was “hampering the ACIC’s special operation” (contempt judgment at [26]); EVA20 had not proffered a reason for his refusal to answer the examiner’s questions (contempt judgment at [27]); EVA20 had not offered an apology or publicly expressed contrition (contempt judgment at [28]); and EVA20 deliberately refused to answer the questions with knowledge of the likely consequences and had refused to purge his contempt despite having opportunities to do so (contempt judgment at [31]). As for EVA20’s late submission that his refusal to answer the questions related to his concern for the safety of his family, Besanko J found that the submission did not avail EVA20 as the fear expressed was no more than “generalised fear”. It was also well established, in any event, that fear of retribution would rarely be given mitigatory weight in cases involving contempt for refusal to answer questions at ACIC examinations (contempt judgment at [43]-[44]).
EVA20 did not appeal the indeterminate sentence imposed on him by Besanko J.
EVA20’S CONVICTION OF DRUG AND PROCEEDS OF CRIME OFFENCES
EVA20 eventually pleaded guilty to five offences arising from his apprehension in February 2020 and the location of quantities of drugs and cash both in his car and at his house. Those offences, in general terms, were importing a marketable quantity of border-controlled drugs, trafficking in a commercial quantity of border-controlled drugs and dealing with the proceeds of crime.
The sentence hearing in respect of those offences took place in the District Court of South Australia on 1 March 2022. The sentencing judge was plainly made aware of the fact that EVA20 had been imprisoned as a result of his conviction of contempt and that Besanko J had ordered that he remain in prison until further order.
The sentence imposed on EVA20 by the District Court judge was an effective head sentence of imprisonment for 11 years and one month with a non-parole period of seven years. Importantly, the sentencing judge ordered that both the head sentence and non-parole period were not to commence until the “completion” of the sentence imposed by Besanko J. It should, in any event, be noted that s 93(a) of the Sentencing Act 2017 (SA) provides as follows:
93—Effect of imprisonment for contempt
If a person is imprisoned for contempt of court—
(a)any sentence of imprisonment that the person has not yet begun to serve (and any non-parole period in respect of that sentence) will not commence until the expiry of the period of imprisonment for contempt; and
(b)any sentence of imprisonment that the person is then serving (and any non-parole period in respect of that sentence) ceases to run for the period of imprisonment for contempt.
The sentence imposed by Besanko J has not expired. That is because the sentence is indeterminate. The result is that the sentence imposed on EVA20 in the District Court of South Australia has not commenced. That sentence will not commence unless either EVA20 purges his contempt and is released by order of this Court, or a fixed term of imprisonment is imposed in lieu of the indeterminate sentence and that term expires. That is no doubt what prompted EVA20 to bring the present application.
EVA20 has not appealed the sentence imposed on him by the District Court of South Australia.
EVIDENCE AND SUBMISSIONS
In support of his application, EVA20 relied on an affidavit sworn by his solicitor which briefly outlined the background of his conviction for contempt and annexed a copy of the remarks on sentence by the relevant District Court judge. He also relied on an affidavit he himself swore. That affidavit relevantly included the following evidence:
5.I have, since about July 2021, worked in the kitchen at Port Augusta gaol in the position of head diet chef.
6.In Port Augusta Prison I am in a high security setting with a high security status. I have avoided discussing my situation with other inmates but prisoners have access to newspapers and television and I have been identified as a prisoner currently appearing in the Federal Court on a charge of contempt of court in relation to certain proceedings. Prisoners have advised me of their knowledge. Some prisoners extrapolate that from the fact that the contempt charges are in the Federal Court the fact that I am therefore appearing before the Australian Crime Commission. These facts then gets spread amongst other prisoners and some prisoners seem to only assimilate the rumour to the extent that I am required to give evidence in the Australian Crime Commission.
7.I consider that I am at risk of violence from random prisoners because of the uncertainty of my status and their propensity to view that uncertainty as reflecting possible cooperation with the authorities. The inmates in my area are mainly sentenced prisoners. The population also includes a lesser number of remandees. They are all of a high security status.
8.Within the prison setting a belief amongst other prisoners that a certain prisoner has cooperated with authorities can put that prisoner at risk of very serious injury or death. I believe that I am at risk irrespective of whether I answer questions as requested or maintain my silence. I believe that the risk to me is greater in the event that I do answer questions.
9.I am also greatly concerned regarding the safety of my immediate family which includes my parents and two siblings.
10.I am aware that people who I have associated with over the years are aware of where my parents live. My parents have resided at the same address since 2003. I have also lived there.
11.On 11 May 2011 at about 11.15pm my parents were home. There were lights on in the house. An unknown person fired approximately 11 shots from a firearm into the house through windows and doors. No one was injured. I was not at home at the time.
The examiner objected to paragraphs 5 to 10 of EVA20’s affidavit on the basis that the statements made in those paragraphs were of a hearsay or conclusionary nature. There was considerable merit in that objection. Paragraphs 5 to 10 were nevertheless admitted on the basis that the evidence in those paragraphs was relevant and probative of EVA20’s belief or state of mind. The evidence was, however, only admitted on that limited basis and was not admitted as evidence of the objective truth of the underlying assertions. For example, EVA20’s assertion that he had been “identified” as a prisoner currently appearing in the Federal Court on a charge of contempt in relation to certain proceedings was admitted as evidence of EVA20’s belief as to that fact, as opposed to evidence that he had in fact been identified as such.
The examiner relied on affidavits sworn by Mr Simon Warwick, who is the State Director of the ACIC for South Australia and the Northern Territory.
Mr Warwick’s evidence included that the relevant ACIC special operation is “ongoing and remains a significant aspect of the ACIC’s ongoing intelligence function” and that EVA20’s examination remains and “continues to be of relevance to the Special Operation”. Mr Warwick also noted that EVA20’s examination had been adjourned on a number of occasions since May 2021 and that the ACIC wished to pursue its questioning of EVA20 at the earliest available opportunity. According to Mr Warwick, the examination of EVA20 under the summons remained a “live issue” for the ACIC.
EVA20 objected to those parts of Mr Warwick’s affidavits in which he asserted that EVA20’s evidence continued to be of relevance to the ACIC operation and remained a live issue. The basis of that objection was somewhat unclear, though it appeared to be based on the contention that Mr Warwick had not disclosed any substantive reason for why EVA20’s evidence continued to be of ongoing relevance to the special operation. It was noted, in that regard, that more than two years had elapsed since EVA20 had been examined.
There was merit in the contention that Mr Warwick’s evidence concerning the ongoing relevance or importance of EVA20’s evidence was very general and unsupported by any meaningful reasoning. That said, it could hardly be expected that Mr Warwick would go into any real detail in relation to the ACIC’s special operation and the use to which EVA20’s evidence may be put by the ACIC. Moreover, the generality of Mr Warwick’s evidence went more to the weight to be given to the evidence as opposed to its admissibility. The evidence was accordingly admitted, albeit subject to the limitation that the evidence was to be used as evidence of Mr Warwick’s beliefs and opinions concerning the ongoing operation and the ongoing relevance of EVA20’s evidence, based on his general knowledge of the special operation in question and his perusal of the ACIC’s records. Those parts of the affidavit that were the subject of objection were not admitted as evidence of the objective truth of the underlying assertions.
The submissions advanced on behalf of EVA20 in support of his application to have a fixed sentence of imprisonment imposed for his contempt convictions in lieu of the indeterminate sentence imposed by Besanko J were brief and, with the greatest respect, somewhat unhelpful. The main thrust of the submissions was that EVA20 remained unwilling to answer the examiner’s questions because he feared for his and his family’s safety, and the indeterminate sentence had not and was not going to persuade him to answer the question in those circumstances. It was submitted that the time that EVA20 had spent in custody to date had not coerced him to answer the questions and that was unlikely to change. There was, so it was submitted, therefore little point in retaining the indeterminate sentence in the belief or expectation that EVA20 would purge his contempt.
EVA20 also submitted that limited weight should be given to Mr Warwick’s evidence concerning the importance of EVA20’s evidence to the ongoing special operation, particularly given the effluxion of time and the absence of any relevant detail in Mr Warwick’s affidavit in respect of that issue.
In EVA20’s submission, the available authorities indicated that a sentence of between two to eight months would be an appropriate sentence for his contempt.
The examiner opposed EVA20’s application and submitted that nothing material had changed since Besanko J had imposed the indeterminate sentence to justify or warrant varying the order. According to the examiner, the evidence had not markedly shifted in any way since 6 May 2021 when Besanko J convicted EVA20 and ordered that he be imprisoned until further order. In the examiner’s submission, EVA20’s application was a “bold attempt by [EVA20] to circumnavigate the pellucid intent of Besanko J’s order” and that it would be quite “counterproductive to the notions of specific and general deterrence” to make the orders sought by EVA20.
Perhaps more significantly, the examiner submitted that it should not be inferred that the ongoing imprisonment of EVA20 might not eventually have the effect of coercing him to answer the questions. Indeed, he submitted that the mere fact that EVA20 had brought this application suggested that his ongoing imprisonment might be having a coercive effect. The examiner also submitted that the Court should accept that such answers that EVA20 might give to the examiner’s questions would be of continuing interest and significance to the ACIC’s special operation.
RELEVANT PRINCIPLES
The parties did not, in their submissions, directly address the Court’s power to revisit the order imposed by Besanko J to the effect that EVA20 be imprisoned until further order. The examiner did not, however, submit that the Court could not revisit the order. He appeared to concede that the order in question was interlocutory in nature and that the Court had the power to revisit interlocutory orders. The examiner’s submission was that the Court should take a “constrained approach” to revisiting interlocutory orders (Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115 at [169]), that the public interest favours the finality of the disposition of interlocutory proceedings (HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission (2021) 64 VR 270; [2021] VSCA 200 at [89]), and that the Court is generally only empowered to revisit an interlocutory order if “new facts come into existence or are discovered which render its enforcement unjust” (Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178).
It appears somewhat odd, at first blush, to characterise an order imposing a penalty of imprisonment for contempt as being interlocutory in nature. The order in question in this matter, however, was plainly interlocutory because it was imposed “until further order”. Besanko J also gave the parties liberty to apply on 24 hours’ notice. It follows that the order was not intended to finally determine the issue of EVA20’s punishment for the contempt in question. It is tolerably clear that Besanko J intended that the order could, and would, be revisited if EVA20 purged his contempt.
It may be accepted that the Court can, and not infrequently does, impose orders of the sort imposed on EVA20 for contempt, particularly where the contempt involves refusing to answer questions that the person was compelled by law to answer. Indeed, it has been recognised that, because of the importance of the “element of coercion” in imposing penalty for contempts of that nature, an order for imprisonment for an indefinite period will often be appropriate: Anderson v XLVII(2015) 319 ALR 139; [2015] FCA 19 at [49]; Wood v Galea (1995) 79 A Crim R 567 at 573; Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 117-118. It has equally been recognised that such an order may not be appropriate if the person has already purged his or her contempt, or if it is no longer necessary to obtain answers to the questions that gave rise to the contempt: XLVII at [49]; Wood v Galea (1995) at 573.
There is also authority which clearly supports the proposition that orders of the sort imposed on EVA20 may be revisited in circumstances other than when the contemnor purges his or her contempt.
In Von Doussa v Owens (No 3), Mr Peter Owens was convicted of contempt for refusing to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. He was committed to custody. He did not purge his contempt, but nonetheless applied for discharge. His first application was refused. The inspector subsequently furnished an interim report which prompted Mr Owens to apply for a discharge once again, even though he had still not purged his contempt by answering the questions that had been put to him. This time the application was granted. Justice Mitchell, with whom Wells J agreed, said (at 119):
The learned Chief Justice also referred in his reasons to the fact that the investigation was still in progress in that the applicant had not lodged his report and the respondent still had the opportunity to purge his contempt by giving the answers required. Although it may be said technically that there is still some opportunity for him to purge his contempt in that the report which has been furnished by the applicant is an interim report, the fact is that the inspector, in so far as he has been able to, has dealt with the matters in relation to which the respondent refused to answer questions.
It seems to me therefore that the time has come when this Court has to consider what is the appropriate penalty for the contempt of which the respondent has been guilty.
His Honour considered that a sentence of imprisonment for three months would have been appropriate, but for reasons it is unnecessary to presently consider, his Honour ordered that Mr Owens be discharged immediately.
In Wood v Galea (1996) 84 A Crim R 274, Mr Galea had been convicted of contempt for refusing to answer questions put to him during a Royal Commission. He was committed to prison until further order. After seven and a half months in custody, Mr Galea applied to have a defined period of imprisonment substituted for the indeterminate punishment. His application was ultimately dismissed, essentially because Hunt CJ at CL was not satisfied that Mr Galea had served the minimum term of imprisonment that would have been required to be imposed on him pursuant to the terms of the Sentencing Act 1989 (NSW). In the course of considering whether or not to grant the application, his Honour said as follows (at 283-284):
I do not believe that it is appropriate to indicate at this stage any particular sentence as one which is appropriate to Mr Galea’s contempt. To do so would – in my view, in the circumstances of this case – effectively destroy the coercive effect of an indeterminate punishment to force him to answer the questions which he has so far refused to answer. I am satisfied that, such was the nature of Mr Galea’s contempt in the present case, an appropriate term punishing him for it (without regard to coercion) would include a custodial period of considerably longer than seven and a half months. The length of time which he has been in custody, therefore, does not yet provide any reason for setting a certain term.
Coercive punishment, however, is not appropriate where it is no longer necessary to obtain a contemnor’s answers to the questions asked or if for any other reason no good purpose will be served by detaining him any further. Mr Galea’s application asserts that it is no longer appropriate (if it were ever appropriate) for coercive punishment to be imposed. The evidence is that the Royal Commission’s public hearings in relation to corruption between police officers and the operators of illegal gaming establishments have not yet commenced. As I have already said, there is no other source from which the information Mr Galea can give could be obtained. The intelligence available to the Commission suggests that Mr Galea is a major operator in illegal gaming and has operated under police protection for many years. In my view, his evidence is of vital importance. I am satisfied that there still remains a need to obtain Mr Galea’s answers to assist the Commission’s inquiry.
Is there still a good purpose to be served by continuing to coerce Mr Galea to give that assistance? There is no suggestion that any means other than an indeterminate punishment will produce it. In my previous judgment, I made the finding that at that stage it was likely that coercive action will eventually produce the information sought by the Commission. The Commissioner bore the onus of establishing that fact. Mr Galea says in his letter that he has not changed his mind in his refusal to answer the questions asked, and he asks me to find upon that basis of that statement that there is no likelihood at all that he will eventually purge his contempt.
The mere say so of a contemnor in such a letter does not automatically lead to a conclusion that no good purpose will now be served by continuing to coerce him to answer the questions which he has so far refused to answer. The issue remains one as to whether a continuing indeterminate punishment is likely eventually to coerce him into answering the questions which he refused without reasonable cause to answer before.
I do not suggest that the contemnor bears an onus of proof to establish that there is no or no longer such likelihood, but he has at least an evidentiary burden to provide evidence or to point to circumstances which may alter the conclusion which was formed at the time when the indeterminate punishment was imposed. That would usually (but not invariably) require some evidence from the contemnor which provides an acceptable explanation for the refusal so far to answer questions. Such an explanation does not have to be one which is objectively reasonable, but it must at least be a credible one. For example, a continuing fear of reprisals, if accepted as at least credible in the circumstances, may in the particular case demonstrate that there is no longer any likelihood that the contemnor will eventually purge his contempt. That is not the only example which could be given.
(Footnotes omitted.)
It can be seen from the observations of Hunt CJ at CL in Wood v Galea (1996) that a critical consideration in the present case is whether EVA20 had adduced credible evidence or pointed to circumstances which suggested that no good purpose would be served by continuing to attempt to coerce him into answering the questions previously put to him. Credible evidence or circumstances which tended to suggest that it was no longer necessary to obtain EVA20’s answers to the relevant questions, or which tended to suggest that EVA20 was unlikely to change his mind and would continue to refuse to answer the questions, may suffice.
A FIXED TERM OF IMPRISONMENT SHOULD BE IMPOSED
I am satisfied that the circumstances of this case are such that the order for indefinite imprisonment previously imposed by Besanko J, while entirely appropriate at the time it was made, should be vacated and replaced by a definite period of imprisonment. That is so for a number of reasons.
First, I am persuaded that there is, at this point in time, no good purpose to be served by continuing to imprison EVA20 in the hope, expectation or belief that he will, at some point in the future, purge his contempt and answer the questions asked of him. He has not done so in the previous fifteen months and has maintained, in his evidence in this proceeding, at least implicitly, that his attitude has not changed and will not change in the future.
EVA20 has also discharged the evidentiary burden on him by giving a relatively credible explanation for his continuing refusal to answer the questions. That explanation was, in effect, that he feared for his family’s safety if the prison community, or others who may have had some association with his criminal activity, were given any reason to suspect that he may be cooperating with law enforcement authorities. While his evidence in that regard was fairly generalised and not entirely satisfactory, it was at least credible. As Hunt CJ at CL explained in Wood v Galea (1996), it generally suffices for a contemnor’s explanation for his or her continuing refusal to answer questions to be credible, even if it may not be objectively reasonable.
I accept that there is some force in the examiner’s submission that the fact that EVA20 has brought this application tended to suggest that his ongoing indefinite detention may be beginning to have some coercive effect. I would, however, infer in all the circumstances that there is no realistic prospect that continuing to hold a sentence of indefinite detention over EVA20’s head was likely to bear fruit in the foreseeable future.
Second, EVA20 has already served more than fifteen and a half months in prison. As a result of the nature of the sentence imposed in the District Court proceedings, that period of imprisonment is solely referrable to his conviction for contempt. As I will explain later, I am not persuaded, in all the circumstances, that a sentence of more than fifteen and a half months would be appropriate to punish EVA20 for contempt. None of the comparable cases involving punishment for contempt involved sentences which exceeded fifteen and a half months. It would, in my view, in the particular circumstances of this case, be oppressive and unwarranted to imprison EVA20 for any period exceeding the period that he has already served in respect of his contempt.
Third, while EVA20’s refusal to answer the questions put to him by the examiner was no doubt a serious contempt, I have difficulty accepting that there is much, if anything, to be served by continuing to endeavour to coerce him to answer the six particular questions that form the basis of the contempt. I accept that Mr Warwick, and no doubt others at the ACIC, genuinely believe that the examination of EVA20 is still a live issue, and that there is still some intelligence to be derived from compelling EVA20 to answer questions, including the six questions he has refused to answer. It is, however, very difficult to accept that there is any objectively reasonable basis for that belief. I would, in that regard, draw attention to the following points.
First, EVA20’s examination occurred over two years ago. The effluxion of over two years since the questions were asked tended to suggest that anything that EVA20 may now have to say in respect of the six questions, or any further questions that may flow from any answers given by EVA20, would be unlikely to have any material or significant intelligence value. That is particularly the case given that the six questions which EVA20 refused to answer were directed at the specific circumstances that existed at the time of his arrest.
Second, the six questions which EVA20 refused to answer related to relatively mundane aspects of the conduct that led to him being charged with the offences to which he pleaded guilty and was in due course sentenced. The questions do not appear to have been directed to broader issues which might reasonably be expected to draw responses which had value as criminal intelligence.
Third, EVA20’s plea of guilty to the drug offences effectively provided answers to the questions which he refused to answer during the examination. For example, the first two questions that EVA20 refused to answer were “When you were arrested, were you in possession of an international mail item?” and “Did the item contain methamphetamine?” EVA20’s plea of guilty to the offences constituted a formal acceptance or admission that he was in possession of an international mail item and that mail item did or had contained methamphetamine. The same can be said in respect of all of the other questions. It may perhaps be accepted that the six questions which gave rise to the contempt were introductory questions and the examiner may have intended to ask EVA20 some more probing questions had EVA20 answered the initial questions. That said, there would be nothing to stop the ACIC from further examining EVA20 at some point in the future and asking those more probing questions if it was thought necessary or desirable to do so. In all the circumstances, however, that might be thought to be somewhat counterproductive. That is a matter for the ACIC.
In all the circumstances, I reject the ACIC’s submission that nothing has changed since Besanko J ordered that EVA20 be imprisoned until further order. Fifteen and a half months has passed since that order was made. The order has plainly not had the coercive effect that it was intended to have. The effluxion of over two years since the examination in question is also likely to have significantly reduced the value of any intelligence that might be gleaned from EVA20’s answers to any of the six relevant questions.
THE APPROPRIATE TERM OF IMPRISONMENT
What, then, is the appropriate penalty to impose on EVA20? EVA20 effectively accepted that it would be appropriate to sentence him to a fixed term of imprisonment. As noted earlier, he submitted that a sentence of somewhere between two to eight months would be appropriate in all the circumstances.
The principles that apply in determining the appropriate punishment for contempt of the sort in issue here are well established. The following relevant considerations are generally referred to in the authorities: the seriousness of the contempt proved; whether the contemnor was aware of the consequences to him or her of the act giving rise to the contempt; the actual consequences of the contempt; whether the contempt was committed in the context of a serious crime; the reason for the contempt; whether there has been any apology or public expression of contrition; the character and antecedence of the contemnor; general and personal deterrence; and denunciation of the contempt: Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185; Lusty v CRA20 [2020] FCA 1737 at [36].
The imposition of a penalty should not, however, be approached on the basis that there is some checklist of considerations that must be ticked off, or that all of the considerations that have been referred to in the earlier authorities are necessarily relevant or deserving of weight in the case at hand. Nor should the list of considerations referred to in the authorities be considered to be exhaustive. Each case must plainly be considered having regard to its own unique facts and circumstances.
In Anderson v GPY18[2019] FCA 954, Banks-Smith J provided an analysis of sentences imposed in respect of contempts committed in circumstances not entirely dissimilar to this case. Her Honour’s analysis revealed that, where sentences of imprisonment for fixed periods were imposed, as opposed to indeterminate sentences, those periods ranged between four months’ imprisonment and two years’ imprisonment. In more recent times, fixed sentences of eight months’ imprisonment have been imposed in two cases involving contempts not dissimilar to this case: see Lusty; Anderson v BYF19 [2019] FCA 1959.
While the analysis undertaken by Banks-Smith J was undoubtedly useful and of assistance, I doubt that the imposition of a term of imprisonment in this matter should be approached on the basis that there is an established range of penalties in cases such as this. While consistency in sentencing is no doubt of considerable importance, comparable cases should always be approached with some caution because each case must be considered on its own facts and circumstances.
The relevant facts and circumstances in relation to the contempts in question in this case were comprehensively analysed by Besanko J in the contempt judgment. In short summary, his Honour accepted, and I accept, that the contempts in question in this case were very serious. EVA20 deliberately refused to answer the questions, knowing and having been informed of the consequences of him so doing. He had also steadfastly refused to purge his contempt.
EVA20 has, however, now offered an explanation for his refusal to answer the questions put to him by the examiner. That explanation, while credible, nevertheless does not significantly mitigate the seriousness of his contempt. The authorities clearly establish that fear of retribution will rarely be given significant mitigatory weight: GPY18 at [31]; BFY19 at [58]-[61]; Lusty at [45].
Very little material has been adduced in respect of EVA20’s subjective circumstances. I rely primarily on the evidence and submissions which were considered by Besanko J, though it appears that his Honour was also not greatly assisted by that limited material.
In the hearing before me, EVA20 tendered a psychologist’s report. That report was apparently tendered before Besanko J, though it does not feature prominently in his Honour’s judgment. That may well be because, as was the case before me, no submissions whatsoever were directed to the contents of that report. I was not taken to a single passage in the report, let alone favoured with submissions as to the relevance of any opinion or conclusion expressed in the report. I nevertheless accept that that report sets out EVA20’s relevant family history, educational history, occupational history, “interpersonal” history, medical history, financial history, legal history, drug and alcohol history, mental health history and antecedents. That information, no doubt, assists in providing an understanding of EVA20’s personal circumstances. The report also provides the psychologist’s clinical opinions and recommendations.
I do not propose to repeat or summarise what is said in the report, particularly given the absence of any meaningful submissions about the relevance of any of the material in the report. I have, however, had regard to the contents of the report in considering the appropriate penalty to impose on EVA20.
In my view, the most significant consideration in imposing a sentence on EVA20 in the particular circumstances of this case is, as is the case generally in relation to contempts of this nature, deterrence, both specific and general. General deterrence is a particularly weighty consideration in all the circumstances. The sentence to be imposed must be such as to send a strong message to anyone who might happen to find themselves in a similar position to EVA20. That message is that they are likely to face a condign sentence involving a substantial period of imprisonment if they refuse to answer questions when they are compelled to do so under the terms of the ACC Act.
Having regard to the objective facts and circumstances of the contempts in question, as well as EVA20’s particular subjective circumstances, I am not persuaded that a sentence of imprisonment of more than fifteen and a half months is warranted. That is the period that EVA20 has already spent in prison. Nor, however, am I persuaded that a lesser sentence is warranted in all the circumstances.
It was submitted on EVA20’s behalf that it would be open to me to fix a period of imprisonment of less than fifteen and a half months if I was minded to do so, even if that would mean that I would be imposing a sentence that had already expired, and even though EVA20 had remained in custody after the sentence had expired. No authority was cited in support of that proposition.
It may be accepted that the circumstances of this case are somewhat unusual. While I was taken to no authority and no meaningful submissions were made in respect of the issue, I accept that it may have been open to me, as a matter of law, to impose a sentence of imprisonment of less than fifteen and a half months, even if that meant that I was imposing a sentence that had already expired. The effect of imposing such a sentence in the unique circumstances of this case would have been that the sentence imposed on EVA20 by the District Court judge in respect of drug offences would have been taken to have commenced on the day that the sentence imposed in respect of his contempt expired. His ongoing imprisonment would have been justified in those circumstances. Ultimately, however, it is unnecessary for me to reach a firm conclusion in respect of that issue. That is because I am satisfied that an appropriate term of imprisonment to impose on EVA20 in respect of the contempt is a sentence that expires today – that is, a sentence of imprisonment for 15 months and 14 days. The effect of that sentence is that the sentence imposed on EVA20 by the District Court of South Australia in respect of the drug offences will commence today.
CONCLUSION AND DISPOSITION
I am persuaded that it is appropriate to vacate the order made by Besanko J on 6 May 2021 that EVA20 be imprisoned until further order.
In lieu of that order, I order that EVA20 be imprisoned for a period of 15 months and 14 days, commencing on 6 May 2021 and expiring today, 19 August 2022.
Nothing that I have said should be interpreted in any way as indicating that the order imposed by Besanko J on 6 May 2021 was not entirely appropriate in all the circumstances at that time. The circumstances, however, have changed since that time such that an indeterminate sentence is no longer warranted or appropriate.
Two additional minor matters should be noted.
First, in relation to the questions of costs, the examiner submitted that it was appropriate that there be no order as to costs. Counsel for EVA20, however, submitted that there should be a costs order in EVA20’s favour. Given the limited time available to deal with that issue, I ordered EVA20 to file any written submissions he wished to rely on in support of his costs application within 14 days and the examiner to file any written submissions in reply within a further 7 days.
Second, at one point during the hearing, in the course of his submissions counsel for EVA20 inadvertently mentioned EVA20’s name. It would, in those circumstances, be appropriate to make a non-publication order in respect of the transcript produced for the hearing on 19 August 2022 so that any reference to the name of the applicant in the proceeding is redacted.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 6 October 2022
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