Anderson v EVA20

Case [2022] FCA 1165

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…

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Details
AGLC
Anderson v EVA20 [2022] FCA 1165
Case
[2022] FCA 1165
Decision Date

CaseChat Overview and Summary

The case involved EVA20, who had been convicted of contempt of the Australian Criminal Intelligence Commission (ACIC) and sentenced to imprisonment until further order by Besanko J of the Federal Court of Australia. EVA20 had refused to answer questions during an examination before an examiner, leading to his conviction for contempt under section 34A of the Australian Crime Commission Act 2002 (Cth). He subsequently applied for the Federal Court to determine the term of imprisonment imposed for the contempt. The primary legal issue before the court was whether the term of imprisonment imposed for the contempt should be revisited and, if so, what term of imprisonment would be appropriate. The court also had to consider the principles governing the revisiting of interlocutory orders and the appropriate punishment for contempt.

The court found that while it might have been legally permissible to impose a sentence of imprisonment of less than fifteen and a half months, it was unnecessary to do so in the unique circumstances of the case. The court was satisfied that an appropriate term of imprisonment to impose on EVA20 for the contempt was a sentence of 15 months and 14 days, which would expire on the date of the hearing. This decision ensured that the sentence imposed on EVA20 by the District Court of South Australia in respect of drug offences would commence on the same day the sentence for contempt expired. The court vacated the order made by Besanko J on 6 May 2021 that EVA20 be imprisoned until further order and instead ordered that EVA20 be imprisoned for the specified term. The court also ordered that a non-publication order be made in respect of the transcript of the hearing on 19 August 2022 to redact any reference to the applicant's name.

The court made several orders in relation to the case. Firstly, it vacated the order made by Besanko J on 6 May 2021 that EVA20 be imprisoned until further order. Secondly, it ordered that EVA20 be sentenced to imprisonment for 15 months and 14 days for the contempts of which he had been convicted, with that term of imprisonment to commence on 6 May 2021 and expire on 19 August 2022. Thirdly, it made a non-publication order in respect of the transcript produced for the hearing on 19 August 2022 to redact any reference to the applicant's name. Fourthly, it allowed EVA20 to file written submissions, not exceeding two pages, within 14 days of the date of the order, and the examiner to file written submissions in reply within 7 days of receiving any submissions filed in accordance with the order. Finally, it noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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