Anderson v Eva20

Case [2021] FCA 457


FEDERAL COURT OF AUSTRALIA

Anderson v EVA20 [2021] FCA 457

File number: SAD 167 of 2020
Judgment of: BESANKO J
Date of judgment: 6 May 2021
Date of publication of reasons: 4 June 2021
Catchwords: CONTEMPT OF COURT — contempt of the Australian Crime Commission punishable as contempt of the Federal Court — where respondent summonsed to appear before an examiner of the Australian Crime Commission and refused to answer questions — where respondent pleaded guilty to six charges of contempt of the Australian Crime Commission pursuant to s 34A of Australian Crime Commission Act 2002 (Cth) — sentence of imprisonment until further order imposed
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 4, 7C, 24A, 25A, 28, 30, 34B, 34C, 46B

Australian Crime Commission Regulations 2018 (Cth) s 8

Sentencing Act 2017 (SA) s 93

Cases cited:

Anderson v BYF19 [2019] FCA 1959

Anderson v DKH18 [2018] FCA 1571

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

Kimber v The Owners Strata Plan No. 48216 (No 2) [2018] FCAFC 58

Lusty v CRA20 [2020] FCA 1737

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

Division: General Division
Registry: South Australia
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 46
Date of hearing: 28 April 2021
Counsel for the Applicant: Mr P d’Assumpcao
Solicitor for the Applicant: Australian Criminal Intelligence Commission
Counsel for the Respondent: Mr A Gaite
Solicitor for the Respondent: Vadasz Lawyers

ORDERS

SAD 167 of 2020
BETWEEN:

JEFFREY PHILIP ANDERSON

Applicant

AND:

EVA20

Respondent

ORDER MADE BY:

BESANKO J

DATE OF ORDER:

6 MAY 2021

THE COURT DECLARES THAT:

1.The Respondent is guilty of contempt of the Australian Criminal Intelligence Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness appearing at an examination before an examiner on 10 September 2020, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

2.The Respondent be imprisoned until further order.

3.A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.

4.A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.

5.Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:

(a)the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of the Respondent to prison under the warrant;

(b)the Manager of the Yatala Labour Prison;

(c)the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that the Respondent be held; and

(d)such other officers employed by, or otherwise providing services to, the Department of Correctional Services…

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Anderson v Eva20 [2021] FCA 457
Case
[2021] FCA 457
Decision Date

CaseChat Overview and Summary

In the case of Anderson v Eva, the Australian Crime Commission (ACIC) sought to enforce its summons against the respondent, who had refused to answer questions during an examination. The respondent had been summoned to appear before an examiner on 10 September 2020, pursuant to the ACIC's intelligence operation. Despite being offered the opportunity to claim protection against self-incrimination under s 30(5) of the Australian Crime Commission Act 2002, the respondent declined and subsequently refused to answer six specific questions material to the ACIC's work. These questions related to the respondent's possession of an international mail item, the presence of methamphetamine, ownership of a vehicle and its contents, and possession of drugs and money found during a search of his residence. The ACIC alleged that the respondent's refusal to answer constituted contempt of the Commission, which is punishable under s 34A of the Act. The respondent pleaded guilty to six charges of contempt of the ACIC.

The central legal issue in this case was whether the respondent's refusal to answer questions during an examination ordered by the ACIC constituted contempt of the Commission, and if so, whether the court had the authority to enforce the summons and impose a sentence. The court needed to determine whether the respondent's actions were indeed contemptuous and whether the ACIC's intelligence operation justified the enforcement of the summons. Additionally, the court had to consider the appropriate sentence for the contempt, weighing the purposes of the intelligence operation against the respondent's rights.

The court held that the respondent's refusal to answer the questions during the examination constituted contempt of the ACIC, as outlined in the purposes of the intelligence operation. The court noted that the intelligence operation aimed to collect, correlate, and analyse criminal information, identify entities involved in criminal activity, and make recommendations to reduce the incidence and effect of such activity. The court concluded that the respondent's refusal to answer questions material to the ACIC's work interfered with these purposes and constituted contempt. The court also found that the purposes of the intelligence operation justified the enforcement of the summons and the imposition of a sentence. Consequently, the court sentenced the respondent to imprisonment until further order, issued a warrant for his imprisonment, and directed that his name and relevant material identifying him be published to certain parties involved in facilitating his committal to prison. The court further ordered that the respondent pay the ACIC's costs of the application on an indemnity basis.

In summary, the court found the respondent guilty of contempt of the ACIC for refusing to answer questions during an examination, and imposed a sentence of imprisonment until further order. The court also issued a warrant for the respondent's imprisonment and directed that his name and relevant identifying material be published to certain parties. The respondent was ordered to pay the ACIC's costs on an indemnity basis.

Orders

Orders of the court

2. The Respondent be imprisoned until further order.

3. A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.

4. A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.

5. Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:

(a) the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of the Respondent to prison under the warrant;

(b) the Manager of the Yatala Labour Prison;

(c) the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that the Respondent be held; and

(d) such other officers employed by, or otherwise providing services to, the Department of Correctional Services that are necessary to give effect to the warrant.

6. In furtherance of order 5 above, and noting that the Respondent is currently on remand in custody at the Yatala Labour Prison in respect of offences before the District Court of South Australia, order 5 of the orders made on 26 November 2020 be varied, only to the extent that it is necessary to publish the Respondent’s name to:

(a) any judicial officer of the State of South Australia considering the Respondent’s sentence for any criminal offending, of which he may be found, or otherwise plead, guilty, during the period of effect of order 2 of these orders;

(b) such court staff, or any other person, as any judicial officer deems necessary to give effect to order 6(a) above; and

(c) any legal representative representing a party to any sentencing proceeding contemplated by order 6(a) above.

7. The Respondent pay the Applicant’s costs of, and incidental to, the application on an indemnity basis.

8. Liberty to apply on 24 hours’ notice.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The purposes of the intelligence operation are set out in paragraph 9 of the Determination. That paragraph provides as follows:9 Purposes of the intelligence operationThe purposes of the intelligence operation are to:(a)collect, correlate and analyse criminal information and intelligence relating to the specified criminal activity, to disseminate that information and intelligence in accordance with the Act and to inform the Board in relation to that information and intelligence;(b)identify the entities involved in the specified criminal activity, and the nature of the activity, and as appropriate, refer that information to other bodies;(c)make appropriate recommendations to the Board and other bodies about suggested investigative and other responses;(d)reduce the incidence and effect of the specified criminal activity (including any adverse impacts on Australia’s national interests) including through:-(i) disruption and/or prevention;(ii)making markets, sectors, infrastructure and capabilities more resilient to the specified criminal activity;(e)make appropriate recommendations to the Board and other bodies about reform of:(i) the law relating to relevant offences;(ii) relevant policies and administrative practices; and(iii)the administration of the courts in relation to trials of relevant offences; and(f)consistent with the definition of intelligence operation in the Act and the purposes above, to investigate the specified criminal activity and to collect evidence about that activity and facilitate the apprehension and, if appropriate, the prosecution of entities involved in it. On 31 August 2020, the applicant issued a summons to the respondent to appear before an examiner on 10 September 2020. On 2 September 2020, an investigator with the ACIC served the summons on the respondent. The following documents were annexed to the summons served on the respondent: the Determination, a document titled “Statement of Rights and Obligations pursuant to subsection 29A(3) of the Australian Crime Commission Act 2002” and Explanatory Notes. The evidence adduced by the applicant establishes that the special operation identified in the Determination is ongoing and that it is a significant aspect of the ACIC’s ongoing intelligence function. On 10 September 2020, the respondent attended before the examiner with a lawyer. The examiner advised the respondent that the examination was conducted in private with only members of the staff of the ACIC present. The examiner required the respondent to take an oath or affirmation and the respondent indicated that he would give an affirmation. The examiner approved the terms of the affirmation that was to be administered to the respondent and an affirmation was administered to the respondent in those terms. The respondent made his affirmation. The examiner then offered the respondent the opportunity to claim the protection against self-incrimination under s 30(5) of the Act. The respondent did not accept the offer and no order was made under that provision. During the course of the examination, a number of questions that were material to the work of the ACIC were asked of the respondent, each of which he refused to answer. The examiner adjourned the examination so that the respondent could obtain legal advice. The respondent was then asked six questions connected with the arrest of the respondent on 26 February 2020 which he refused to answer. The six questions 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 fifty 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?The applicant required the respondent to answer each of these questions, but he refused. The applicant advised the respondent that the questions which the respondent refused to answer are questions which were material to the work of the ACIC. The examiner also advised the respondent pursuant to s 34B(2) of the Act that he was of the opinion that the respondent was in contempt of the ACIC and that he proposed to make an application to the Court for the respondent to be dealt with in relation to the contempt. The applicant advised the respondent that in contempt proceedings, he was likely to face imprisonment straight away.