CONTEMPT OF COURT - sentencing - contempt of the Australian Criminal Intelligence Commission - contempt punishable as contempt of Federal Court - respondent in contempt by refusing to take oath or make affirmation in examination - where respondent pleaded guilty - where respondent facing lengthy term of imprisonment for other offences - fixed term of imprisonment imposed

Legislation:

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

Federal Court of Australia Act 1976 (Cth) s 31

Federal Court Rules 2011 (Cth) Part 42

Cases cited:

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Anderson v DKH18 [2018] FCA 1571

Anderson v XLVII [2015] FCA 19

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

Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809

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

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

Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277

Murray v Chief Examiner [2018] VSCA 144

Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527

R v Abell [2007] QCA 448

R v Drever [2010] SASCFC 27

Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991)

Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309

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

Date of hearing:

18 June 2019

Registry:

Western Australia

Division:

General Division

National Practice Area:

Federal Crime and Related Proceedings

Category:

Catchwords

Number of paragraphs:

Counsel for the Applicant:

Mr AC Willinge

Solicitor for the Applicant:

Australian Government Solicitor

Counsel for the Respondent:

Mr M Tudori

Solicitor for the Respondent:

Michael Tudori & Associates

Table of Corrections

25 June 2018

Counsel and solicitor details for applicant and respondent were inserted against the wrong party and have been amended to reflect the correct representation.

ORDERS

WAD 605 of 2018

BETWEEN:

JEFFREY PHILIP ANDERSON, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant

AND:

GPY18

Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

21 JUNE 2019

THE COURT DECLARES THAT:

1. The respondent is guilty of the charge of contempt of the Australian Crime Commission (also known as the Australian Criminal Intelligence Commission) in that, being a witness appearing at an examination before an examiner on 11 September 2018 and having been required by the examiner to take the oath or make an affirmation in terms approved by the examiner, he refused to be sworn or affirmed.

THE COURT ORDERS THAT:

2. The respondent is committed to imprisonment for…

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 GPY18

Details

AGLC: Anderson v GPY18 [2019] FCA 954
Case: [2019] FCA 954
Decision Date: 21 June 2019

CaseChat Overview and Summary

In the matter of Anderson v GPY18, the Federal Court of Australia dealt with a case of contempt against a respondent who had refused to take an oath or make an affirmation during an examination before the Australian Criminal Intelligence Commission (ACIC). The respondent, facing a lengthy term of imprisonment for other offences, had pleaded guilty to the charge of contempt. The primary issue before the Court was the appropriate sentence to be imposed for the contempt committed against the ACIC, which was punishable as if it had been committed against the Federal Court. The Court had to balance the severity of the contempt with the respondent's existing criminal situation.

The Court considered several factors in determining the sentence, including the seriousness of the contempt, the respondent's conduct, and the need for deterrence. Given the respondent's guilty plea and the mitigating factor of his other pending charges, the Court opted for a fixed term of imprisonment of six months. The Court also made specific orders regarding the disclosure of the respondent's name to the prosecuting agencies involved in his other charges, while maintaining the previously imposed non-publication and suppression orders. Additionally, the Court ordered the respondent to pay the applicant's costs of the application, should they not be agreed upon.

The Court's decision was meticulously detailed, addressing both the punishment for the contempt and the implications for the respondent's ongoing legal matters. The sentence of six months imprisonment was deemed sufficient to serve as a deterrent while considering the respondent's existing legal predicament. Furthermore, the specific orders regarding the disclosure of the respondent's name ensured that the prosecuting agencies could proceed with their cases without undue hindrance. Finally, the imposition of costs on the respondent underscored the importance of adhering to legal processes and the consequences of non-compliance.

Orders

Orders of the court

2. The respondent is committed to imprisonment for such contempt for a period of 6 months.

3. A warrant for the respondent's committal to prison for a period of 6 months issue.

4. The non‑publication orders made 30 January 2019 be varied so that the disclosure of the respondent's name to the proper officers of the prosecuting agencies responsible for prosecuting the existing charges against the respondent (being the charges referred to in paragraphs 10‑14 of the respondent's outline of submissions filed 17 May 2019) is permitted.

5. The non‑publication and suppression orders made 30 January 2019 otherwise remain in force.

6. The respondent pay the applicant's costs of the application to be assessed if not agreed.

7. 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

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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

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Citations

AGLC Citation

Anderson v GPY18 [2019] FCA 954

Most Recent Citation

Anderson v BYF19 [2019] FCA 1959

Cases citing this decision · 11 of 11 shown

Lusty v EZJ25
[2025] FCA 1068 Para 27

…In Anderson v GPY18 [2019] FCA 954 ( GPY18 ), Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as having been regarded by subsequent cases as a convenient guide when sentencing for criminal contempt both in the context of sta…
Sage v Ayi23
[2023] FCA 1336 Para 24

…In Anderson v GPY18 [2019] FCA 954 ( GPY18 ), Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as having been regarded by subsequent cases as a convenient guide when sentencing for criminal contempt both in the context of sta…
Lusty (Examiner) v DEZ22 (No 2)
[2023] FCA 858 Para 4

…In Anderson v GPY18 [2019] FCA 954, Banks-Smith J provided an analysis of sentences imposed in respect of instances of contempt committed in circumstances not entirely dissimilar to this case. Her Honour’s analysis revealed that, where sentences of imprisonment for fixed periods were imposed, those periods ranged…
Lusty v CVA22
[2023] FCA 130 Para 9

…at the plea of guilty produced little significant saving of time or cost. Nevertheless, a guilty plea has some value: CRA20 at [49]; Anderson v GPY18 [2019] FCA 954 at [34]; Hannaford v HH (No 2) [2012] FCA 560; 203 FCR 501 at [82]. I have taken the respondent’s guilty plea into account, as well as the fact that…
DTO21 v Australian Crime Commission
[2022] FCAFC 190 Para 7

…a fixed sentence of 12 months was now appropriate, having considered the cases referred to in DTO21 No 1 and in particular Anderson v GPY18 [2019] FCA 954, Anderson v BYF19 [2019] FCA 1959 and Lusty v CRA20 [2020] FCA 1737: [23]; (i)said that in fixing that sentence and (again) reserving liberty to apply, his Hon…
Sage v CFT22
[2022] FCA 1028 Para 3

…s conduct as being very serious, citing the observations of Banks-Smith J concerning compliance with examination requirements in Anderson v GPY18 [2019] FCA 954 at [20]. Mr Sage seeks an immediate indeterminate sentence in order to coerce compliance by the respondent.…
Anderson v EVA20
[2022] FCA 1165 Para 26

…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 sent…
Australian Crime Commission v Dto21 (No 2)
[2022] FCA 934 Para 23

…, in my view, a fixed sentence of 12 months is now appropriate. I have considered the cases referred to in DTO21 No 1, in particular Anderson v GPY18 [2019] FCA 954, Anderson v BYF19 [2019] FCA 1959 and Lusty v CRA20 [2020] FCA 1737.…
Australian Crime Commission v DTO21
[2022] FCA 288 Para 2

…These considerations were referred to in DKH18 at [29]; Anderson v GPY18 [2019] FCA 954 at [25]-[27] (Banks-Smith J) and Lusty v CRA20 [2020] FCA 1737 at [35]-[36] (Abraham J). In DKH18 at [29], White J observed that “the coercion of the contemnor in a context like the present is a particularly important consider…
Lusty v CRA20
[2020] FCA 1737 Para 3

…In Anderson v GPY18 [2019] FCA 954, Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: and see for…
Anderson v BYF19
[2019] FCA 1959 Para 10

…Recently, in Anderson v GPY18 [2019] FCA 954, Banks-Smith J at [25]-[27] referred to the considerations identified by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 as a convenient guide when sentencing for criminal contempt both in the context of statutory contempt provisions and common law: a…

View all 11 citing cases →

Cases cited in this decision · 14 of 14 shown

Anderson v DKH18
[2018] FCA 1571 Para 2

…In Anderson v DKH18 [2018] FCA 1571, White J summarised some of the statements by the court to that effect as follows: [24] A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted…
Michael Murray v The Chief Examiner
[2018] VSCA 144 Para 2

…luence the respondent to provide timely cooperation. The respondent was sentenced to imprisonment until further order. (4) In Murray v Chief Examiner [2018] VSCA 144, leave to appeal from a sentence for contempt was refused. The respondent was found guilty after trial of contempt of a chief examiner under the Majo…
Anderson v XLVII
[2015] FCA 19 Para 2

…estigations, the contemnors persistently refused to take an oath. Each was sentenced to 2 years imprisonment with backdating. (2) In Anderson v XLVII [2015] FCA 19 a respondent in contempt of the Australian Crime Commission by refusing to answer questions but who subsequently purged such contempts was sentenced…
Australian Competition and Consumer Commission v Jutsen (No 6)
[2012] FCA 809 Para 3

…llbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9].…
Allbeury v Corruption and Crime Commission
[2012] WASCA 84 Para 3

…Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Anderson v DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [216]; Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 at [9].…
Corruption and Crime Commission v Allbeury (No 2)
[2011] WASC 26 Para 2

…on and Crime Commission the Court of Appeal upheld sentences imposed in Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26; (2011) 205 A Crim R 386 on (relevantly) three contemnors where, in the context of organised crime investigations, the contemnors persistently refuse…
Hannaford v HH
[2010] FCA 1214 Para 2

…an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime. [27] In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds‑Streeton J noted: [57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specifie…
R v Drever
[2010] SASCFC 27 Para 2

…A of the Act refused to answer questions and was sentenced to 12 months imprisonment to be released on recognisance after 4 months. (7) In R v Drever [2010] SASCFC 27, the defendant pleaded guilty to three counts of refusing to answer a question at an Australian Crime Commission examination contrary to s 30(2) of t…
R v Abell
[2007] QCA 448 Para 2

…The defendant was sentenced to imprisonment for 12 months with a direction that the sentence be served by way of periodic detention. (6) In R v Abell [2007] QCA 448, an appellant who was examined under s 24A of the Act refused to answer questions and was sentenced to 12 months imprisonment to be released on recog…
Hughes v Australian Competition and Consumer Commission
[2004] FCAFC 319 Para 1

…There is a range of penalties available to the court in punishing for contempt. In Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, the Full Court at [55] endorsed the statement of Nicholson J in Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA…
Australian Competition and Consumer Commission v Info4PC.com Pty Ltd
[2002] FCA 949 Para 1

…2004) 247 FCR 277, the Full Court at [55] endorsed the statement of Nicholson J in Australian Competition & Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949, (2002) 121 FCR 24 at [138] as to the range of penalties available to the court in punishing for contempt, namely: (a) to commit a contemnor to priso…
Principal Registrar of the Supreme Court of New South Wales v Jando
[2001] NSWSC 969 Para 3

…statutory contempt provisions and common law criminal contempt: see, for example, Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527; Anderson v DKH18 at [29]; Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 at [216]; Australian Co…
Registrar of the Court of Appeal v Maniam
[1991] NSWCA 236 Para 3

…More generally, the purpose of punishment for contempt of court was addressed by Kirby P in Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 at 313‑314, who observed: Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the g…
Ditfort v Calcraft
[1989] NSWCA 64 Para 3

…tly of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours. In Ditfort v Calcraft (1989) 98 FLR 158 at 160, I said: '… These well known features of our legal system make the faithful compliance with subpoenas issued by the courts essential to the prop…

Legislation cited in this decision · 6

Australian Crime Commission Act 2002 (Cth)
28, 30, 34A, 34B, 7, 7A, 7C 8 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
31 2 mentions (from Para 8)
Criminal Code Act 1995 (Cth)
1 mention (from Para 2)
Federal Court Rules 2011 (Cth)
1 mention (from Para 8)
Major Crime (Investigative Powers) Act 2004 (Vic)
1 mention (from Para 2)
Therapeutic Goods Act 1989 (Cth)
1 mention (from Para 2)