Australian Crime Commission v DTO21

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FEDERAL COURT OF AUSTRALIA

Australian Crime Commission v DTO21 [2022] FCA 288   

File number(s): NSD 1116 of 2021
Judgment of: THAWLEY J
Date of judgment: 28 March 2022
Catchwords: CONTEMPT OF COURT – sentencing – contempt of the Australian Criminal Intelligence Commission – respondent in contempt by refusing to answer questions in examination – where respondent pleaded guilty – where respondent did not subsequently purge contempts despite opportunities to do so – indefinite term of imprisonment imposed
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7A, 24A, 28, 30, 33, 34, 34B, 34C

Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth)

Criminal Code Act 1995 (Cth)

Evidence Act 1995 (Cth) s 173

Federal Court of Australia Act 1976 (Cth) ss 31, 37AF

Federal Court Rules 2011 (Cth) rr 29.09, 42.15

Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth)
Cases cited:

Anderson v DKH18 [2018] FCA 1571

Anderson v EVA20 [2021] FCA 457

Anderson v GPY18 [2019] FCA 954

Anderson v XLVII [2015] FCA 19

Australian Competition and Consumer Commission v INFO4pc.com Pty Ltd [2002] FCA 949

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

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

Hannaford v HH (No 2) [2012] FCA 560, (2012) 203 FCR 501

Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319

Independent Commission Against Corruption v Cornwall (No 1) (1993) 116 ALR 97

Lusty v CRA20 [2020] FCA 1737

R v Drever [2010] SASCFC 27

R vDial (unreported, District Court of South Australia, 30 April 2009)

R v Giuseppe Falangaand Carmelo Falanga (unreported, District Court of South Australia, 6 March 2008)

R v Smith (1987) 44 SASR 587

Royal Commissioner v Staunton (unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995)

Sage v ZZ (No 2) [2015] FCA 450

Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486

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

Wood v Galea (1995) 79 A Crim R 567

Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 92
Date of hearing: 25 March 2022
Counsel for the Applicant: Ms S Maharaj QC
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr D Carroll
Solicitor for the Respondent: William O’Brien & Ross Hudson Solicitors

 

ORDERS

NSD 1116 of 2021
BETWEEN:

AUSTRALIAN CRIME COMMISSION

Applicant
AND:

DTO21

Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

28 MARCH 2022

THE COURT DECLARES THAT:

1.The respondent is guilty of the charge of contempt of the Australian Criminal Intelligence Commission in that, being a witness appearing at an examination before an examiner on 17 June 2021, the respondent refused to answer seven questions which the examiner required him to answer, contrary to s 34A(a)(ii) of…

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Details
Case
[2022] FCA 288
Decision Date

CaseChat Overview and Summary

In the case of Australian Crime Commission v DTO21, the court was asked to consider the imposition of sentence on the respondent, who had pleaded guilty to seven charges of contempt of the Australian Criminal Intelligence Commission (ACIC). The respondent had been summoned to give evidence before an examiner as part of a special ACIC operation concerning high risk and emerging drugs. Despite being informed of his obligations under the ACIC Act, the respondent refused to answer certain questions during the examination, leading to his conviction for contempt.

The legal issues before the court were the appropriate sentence for the respondent’s contemptuous conduct and whether the respondent should be given an opportunity to purge his contempt by answering the questions he had refused to answer. The court noted that the respondent had been given multiple opportunities to purge his contempt but had failed to do so. Given the seriousness of the contempt and the need for the ACIC to gather information to combat high risk and emerging drug activities, the court decided on an indefinite term of imprisonment for the respondent.

The court emphasised the importance of the ACIC’s ability to conduct examinations and the necessity for witnesses to comply with their obligations under the ACIC Act. The court held that the respondent's contemptuous conduct had significantly impeded the ACIC’s operations and that an indefinite term of imprisonment was necessary to uphold the integrity of the ACIC’s investigative processes. The court also ordered that the unredacted version of the reasons for judgment not be published and mandated that the parties propose a redacted version for publication within seven days. Finally, the court ordered the respondent to pay the applicant’s costs of the application as agreed or assessed.

Orders

Orders of the court

1. The respondent be imprisoned until further order.

2. A warrant for the respondent’s committal to prison be issued and be provided to the Commissioner and Officers of the Australian Federal Police and Corrective Services NSW with a copy of these Orders.

3. If the respondent purges his contempt:

(a) the respondent is to notify the Associate to Thawley J of that fact within 24 hours of the purging;

(b) the parties have liberty to apply for an order modifying or discharging order 1.

4. Reserve liberty to apply generally.

5. The respondent pay the applicant’s costs of the application as agreed or assessed.

6. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), to prevent prejudice to the proper administration of justice:

(a) The unredacted version of the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court.

(b) Within 7 days the parties provide to the Associate to Thawley J a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The respondent pleaded guilty to each of the seven contempt charges on 8 December 2021. These are the reasons for making a declaration in relation to the contempt and for the sentence imposed.BACKGROUND On 11 June 2021, the examiner issued a summons requiring the respondent to attend to give evidence before the examiner on 16 June 2021. The summons was issued for the purposes of a special ACIC operation, namely the High Risk and Emerging Drugs 2020 Special ACIC Operation authorised by the Special Australian Criminal Intelligence Commission Operation Determination (High Risk and Emerging Drugs) 2020 (HRED 2020 Special ACIC Operation Instrument), dated 28 July 2020. This instrument authorised an intelligence operation to determine whether federally relevant criminal activity had been committed, was being committed or may be committed and, if so, the nature and extent of the activity and the identity and role of entities involved in it. The intelligence operation concerned activities connected with high risk and emerging drugs, including offences under Part 9.1 (serious drug offences) of the Criminal Code Act 1995 (Cth) punishable by 3 years imprisonment or more and a range of offences connected with a course of activity involving the commission of such offences, including money laundering offences contrary to Division 400 of the Criminal Code. In making the Determination, the Board of the ACIC (including the heads of all Australian police forces) determined that “it is in the public interest that the Board authorise the special ACIC operation”, being “an intelligence operation relating to specified criminal activity”. In doing so, the Board contemplated that it was necessary for the ACIC to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”. As noted earlier, s 24A of the ACC Act empowers an examiner to conduct an examination for the purposes of a special ACC operation / investigation. The respondent was excused from attendance on 16 June 2021 and directed to attend on 17 June 2021. This occurred because the respondent’s legal representative was not able to be present on 16 June 2021. The respondent attended, with his legal representative, on 17 June 2021. The respondent was advised that the examination was being conducted in private with only members of the staff of the ACIC present. The examiner explained that the ACIC would treat the respondent’s evidence as confidential. The examiner outlined the obligations of ACC examination witnesses under the ACC Act, including the obligation to answer all questions the examiner required be answered even if doing so might incriminate the person or show that the person had committed an offence. The examiner explained the obligation to do so truthfully. The examiner gave the respondent a ‘blanket’ or ‘automatic’ protection against self-incrimination under s 30(5) of the ACC Act and explained the effect of this protection. The examiner outlined the consequences of giving false or misleading evidence.

Evidence

Evidence Before The Court

Neither party referred to s 173 of the Evidence Act 1995 (Cth) or rule 29.09 of the Rules. Section 173(1) provides that an affidavit must be served a reasonable time before the hearing of proceedings. Section 173(2) of the Evidence Act provides that “[t]he party who tenders the affidavit or statement must, if another party so requests, call the deponent or person who made the statement to give evidence but need not otherwise do so”. Rule 29.09 of the Rules provides:29.09 Cross‑examination of deponent(1) A party may give notice requiring a person making an affidavit to attend for cross‑examination.(2) The notice under subrule (1) must be given to the party filing the affidavit or proposing to use it.(3) If a person required to attend under subrule (1) fails to do so, the person’s affidavit may not be used.Note: The Court may dispense with compliance with the Rules—see rule 1.34.(4) If a person making an affidavit is cross‑examined, the party using the affidavit may re‑examine the person. Both of these provisions imply that a party who wishes to do so would generally be permitted to cross-examine. Nevertheless, the Court controls its own procedures and a party may not be permitted to cross-examine, particularly in the interlocutory context – see, for example: Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 (Stewart J). The considerations which often militate in favour of refusing leave to cross-examine in that context were not present here. Considerations of fairness indicated that the respondent should not be denied the opportunity to cross-examine. In the result, the Court required the applicant to call Mr Halls if the applicant wished to rely on Mr Halls’ two affidavits. The Court indicated that any public interest immunity claim could and should be made if and when necessary. Mr Halls was called and he was cross-examined. Mr Halls’ first affidavit, some of which was in the nature of submissions rather than evidence, indicated the following:·The (HRED) Special ACIC Operation was divided into specific projects. “Project Baystone” was established to monitor assessed high risk drug markets for methylamphetamine, cocaine, methylenedioxymethamphetamine (MDMA) and heroin and resolve intelligence gaps in relation to those markets. Project Baystone was also intended to produce intelligence and research products on market trends, use coercive powers to support relevant partner agency activity, and to identify and assess the highest risk participants in the respective markets: first affidavit at [8].·The then Head of the Special ACIC Operation, Mr Shane Neilson, applied on 11 June 2021 to Examiner Lusty for a summons to be issued to the respondent for the purpose of the Special ACIC Operation and Project Baystone: first affidavit at [9].·Mr Neilson sought to have the respondent examined on the basis that he had various significant links and close associations with members of serious and organised crime (SOC) groups involved in the importation and trafficking of very large amounts of border controlled drugs, including links to a [redacted] drug trafficking organisation: first affidavit at [11]. ·Mr Halls believed that the respondent’s role was that [redacted]: first affidavit at [11]. ·By virtue of its intelligence holdings and investigations, the ACIC was aware that there is cross-jurisdictional trafficking of methylamphetamine, cocaine and precursor chemicals and related proceeds of crime, and that this activity is undertaken by sophisticated transnational and domestic organised crime groups. The ACIC assesses that methylamphetamine poses Australia’s highest serious and organised crime risk. The ACIC’s efforts in this regard remain a very high priority for the agency under several national and multi-state Projects, including Project Baystone. The large-scale illicit domestic manufacture of methylamphetamine and other illicit drugs is also a high priority for the ACIC and again Project Baystone forms a significant part of the ACIC’s response to this issue: first affidavit at [13].·Mr Halls considered that, at the time the summons was applied for, the information sought from the respondent would assist the ACIC to: (a)collect and analyse criminal information and intelligence relating to serious and organised crime and to disseminate that intelligence as provided under the ACC Act;(b)identify the nature of the criminal activities and any additional (at that time and presently unknown) persons who were suspected of being involved;(c)proactively take steps to understand the broader drug trafficking activities in which the respondent and his associates were suspected of being involved;(d)obtain details of methods of secure communication adopted by the drug trafficking organisations and other measures they employ to frustrate and avoid law enforcement scrutiny of their activities;(e)obtain details of cross-state activity in which the drug trafficking organisations are involved and how and by whom it is coordinated;(f)in conjunction with partner agencies, take measures to disrupt any further activities of identified organised crime networks that were alleged to be involved in the transnational and interstate drug trafficking activities: first affidavit at [14].·Mr Halls considered that the respondent’s contempt of the ACIC prevented the ACIC from obtaining answers from him about his knowledge of illicit drug trafficking matters, particularly as they relate to the members and locations of the transnational and domestic crime groups whose activities he facilitated, successful and planned future importations of border controlled drugs and the modus operandi employed by himself and his criminal associates. The information sought from the respondent is likely to provide the ACIC with valuable insights into the supply and distribution of illicit drugs, the involvement and identification of particular individuals in organised crime, as well as methodologies that are being employed by members of the relevant criminal groups to avoid law enforcement scrutiny of their activities: first affidavit at [15].·Notwithstanding the passage of time since the examination of the respondent held on 17 June 2021, the respondent is expected to be in possession of information which is as relevant now to the ACIC’s current and ongoing investigation as at the time of the examination. The answers to the questions which the respondent refused to answer in the examination, for which he has pleaded guilty to contempt of the ACIC, continue to be material to the work of the ACIC: first affidavit at [16].·Mr Halls considered that responses to the questions asked at the examination about the Google phone, as well as other questions relevant to the ACIC’s ongoing investigation, would be of significant value to the ACIC about drug related criminal activity: first affidavit at [17].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The summons was issued for the purposes of a special ACIC operation, namely the High Risk and Emerging Drugs 2020 Special ACIC Operation authorised by the Special Australian Criminal Intelligence Commission Operation Determination (High Risk and Emerging Drugs) 2020 (HRED 2020 Special ACIC Operation Instrument), dated 28 July 2020. This instrument authorised an intelligence operation to determine whether federally relevant criminal activity had been committed, was being committed or may be committed and, if so, the nature and extent of the activity and the identity and role of entities involved in it. The intelligence operation concerned activities connected with high risk and emerging drugs, including offences under Part 9.1 (serious drug offences) of the Criminal Code Act 1995 (Cth) punishable by 3 years imprisonment or more and a range of offences connected with a course of activity involving the commission of such offences, including money laundering offences contrary to Division 400 of the Criminal Code. In making the Determination, the Board of the ACIC (including the heads of all Australian police forces) determined that “it is in the public interest that the Board authorise the special ACIC operation”, being “an intelligence operation relating to specified criminal activity”. In doing so, the Board contemplated that it was necessary for the ACIC to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”. As noted earlier, s 24A of the ACC Act empowers an examiner to conduct an examination for the purposes of a special ACC operation / investigation. The respondent was excused from attendance on 16 June 2021 and directed to attend on 17 June 2021. This occurred because the respondent’s legal representative was not able to be present on 16 June 2021. The respondent attended, with his legal representative, on 17 June 2021. The respondent was advised that the examination was being conducted in private with only members of the staff of the ACIC present. The examiner explained that the ACIC would treat the respondent’s evidence as confidential. The examiner outlined the obligations of ACC examination witnesses under the ACC Act, including the obligation to answer all questions the examiner required be answered even if doing so might incriminate the person or show that the person had committed an offence. The examiner explained the obligation to do so truthfully. The examiner gave the respondent a ‘blanket’ or ‘automatic’ protection against self-incrimination under s 30(5) of the ACC Act and explained the effect of this protection. The examiner outlined the consequences of giving false or misleading evidence. Counsel assisting the examiner asked the respondent a series of introductory questions followed by questions concerning the respondent’s ownership of mobile phones, procurement of ‘burner’ phones and visit of a male in [redacted]. The respondent gave answers to these questions.