Anderson v GPY18

Case [2019] FCA 954


FEDERAL COURT OF AUSTRALIA

Anderson v GPY18 [2019] FCA 954

File numbers:

WAD 605 of 2018

Judges:

BANKS-SMITH J

Date of judgment:

21 June 2019

Catchwords:

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:

39

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…

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

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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