DTO21 v Australian Crime Commission

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FEDERAL COURT OF AUSTRALIA

DTO21 v Australian Crime Commission [2022] FCAFC 190

Appeal from: Australian Crime Commission v DTO21(No 2) [2022] FCA 934
File number: NSD 748 of 2022
Judgment of: WIGNEY, BROMWICH AND ABRAHAM JJ
Date of judgment: 30 November 2022
Catchwords: CONTEMPT OF COURT – refusal by appellant to answer certain questions in Australian Crime Commission examination – refusal constituted contempt under s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) – appellant sentenced to 12 months’ imprisonment with liberty to apply – whether primary judge erred in finding there was continued prospect of appellant purging contempt – relevance of coercion in fixing sentences for contempt – whether primary judge considered suspended sentence – whether sentence was manifestly excessive – no error established – appeal dismissed
Legislation: Australian Crime Commission Act 2002 (Cth) s 34A(a)(ii)
Cases cited:

Anderson v BYF19 [2019] FCA 1959

Anderson v DKH18 [2018] FCA 1571

Anderson v EVA20 [2022] FCA 1165

Anderson v GPY18 [2019] FCA 954

Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19

Australian Crime Commission v DTO21 (No 2) [2022] FCA 934

Australian Crime Commission v DTO21 [2022] FCA 288

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

He v Sun [2021] NSWCA 95; 104 NSWLR 518

Hili v The Queen [2010] HCA 45; 242 CLR 520

House v The King [1936] HCA 40; 55 CLR 499

Lusty v CRA20 [2020] FCA 1737

R v Olbrich [1999] HCA 54; 199 CLR 270

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

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Tracey v The Queen [2020] ACTCA 51

Veen v The Queen (No 2) (1988) 164 CLR 465

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 Galea (1997) 92 A Crim R 287

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: 65
Date of hearing: 27 October 2022
Counsel for the Appellant: Mr K Ginges with Mr J Donnelly
Solicitor for the Appellant: William O’Brien & Ross Hudson Solicitors
Counsel for the Respondent: Ms J Single SC with Mr M Varley
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 748 of 2022
BETWEEN:

DTO21

Appellant

AND:

AUSTRALIAN CRIME COMMISSION

Respondent

ORDER MADE BY:

WIGNEY, BROMWICH AND ABRAHAM JJ

DATE OF ORDER:

30 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent's costs as assessed or agreed.

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


REASONS FOR JUDGMENT

WIGNEY J:

  1. I have had the benefit of reading, in draft, the reasons of Bromwich and Abraham JJ.  I agree with their Honours that…

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Details
Case
[2022] FCAFC 190
Decision Date

CaseChat Overview and Summary

The case of DTO21 v Australian Crime Commission involved the appellant's refusal to answer certain questions during an examination by the Australian Crime Commission, which was found to constitute contempt under section 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth). The appellant was sentenced to 12 months’ imprisonment with liberty to apply. The appellant appealed against the sentence, arguing that the primary judge had erred in finding there was a continued prospect of the appellant purging the contempt, in considering coercion as a relevant factor, and in not considering a suspended sentence. The appellant also argued that the sentence was manifestly excessive. The appeal was heard in the Federal Court of Australia.

The legal issues before the court included whether the primary judge erred in finding that there was a continued prospect of the appellant purging the contempt, in considering coercion as a relevant factor in sentencing, and in not considering a suspended sentence. The court also needed to determine whether the sentence was manifestly excessive. The Commission argued that the primary judge's findings were supported by the evidence, and that coercion was an appropriate consideration. The Commission further submitted that it was impossible to prove beyond reasonable doubt that someone would do something, and therefore it could not be required.

The court found that there was no error in the primary judge's decision to impose a sentence of 12 months’ imprisonment with liberty to apply. The court held that there was evidence to support the primary judge's conclusion that there was a continued prospect of the appellant purging the contempt. The court also found that it was appropriate for the primary judge to consider coercion as a relevant factor in sentencing, and that the sentence was not manifestly excessive. The court held that none of the grounds of appeal had succeeded, and therefore the appeal was dismissed.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs as assessed or agreed. The court noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent's costs as assessed or agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is nothing to indicate that converting an indeterminate sentence, after some four and a half months, into a fixed term of 12 months was other than properly and appropriately reasoned and arrived at. There was nothing particularly remarkable about the duration arrived at by his Honour. It follows that this ground of appeal must fail.Conclusion As none of the grounds of appeal have succeeded, the appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

The Commission’s written submissions, again developed and enlarged upon in oral submissions, direct attention to the detail in the primary judge’s reasons in both DTO21 No 1 and in DTO21 No 2. The Commission characterises the burden of ground 1(a) as being that there was no evidence at all relevant to the conclusion that the appellant might yet purge his contempt, and submits that the impugned conclusion reached by the primary judge involved factual findings leading to a discretionary judgment that was supported by the overall facts and circumstances proven, and that no error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 505 had been identified or established. As to ground 1(b), the Commission submits that there was no error on the part of the primary judge in taking into account coercion as an important consideration amongst other considerations, in line with authorities on the topic. More generally, the Commission submits that it is impossible for it to prove beyond reasonable doubt that someone will do something, and accordingly it could not be the case, as a matter of logic, that this was required.Consideration Given the appellant’s reliance on the observations in both Wood v Galea No 1 and Wood v Galea No 2, it is appropriate at the outset to address those authorities. Wood v Galea No 1 is one of a number of cases on contempt sentencing arising out of the refusal of Mr Bruce Galea, a witness called at the Wood Royal Commission to answer questions. Hunt CJ at CL at 571, in the course of addressing an argument that there was no power to impose an indeterminate sentence, said that three possible specific purposes of an action in contempt were retribution, coercion and deterrence. At 574, his Honour concluded that he did not believe that Mr Galea’s “obduracy is of such a nature that it is unlikely he will change his mind … On the contrary, I am satisfied that it is likely that coercive action against [Mr Galea] will eventually produce the information sought by the [Royal] Commissioner”. This conclusion was evidently based on the facts and circumstances leading to the charge of contempt being brought against him as detailed earlier in the reasons, including his refusal to answer questions, and his very poor health. His Honour was therefore referring to the overall circumstances proven to exist. There is nothing in Wood v Galea No. 1 to suggest that there was any direct evidence that Mr Galea would purge his contempt; and as noted below, in Wood v Galea No. 2 reference was made to a letter from him in which he said he would not, with this being found not to be enough. Moreover, Hunt CJ at CL’s prediction was proved wrong, because Mr Galea served several years in prison, to the end of the Royal Commission, and never succumbed. Thus, it is clear that one of the tasks of a judge in sentencing for contempt of the kind in this case in the first place is making a prediction of the likelihood of the occurrence of a future event, namely, the purging of contempt by answering the questions. However, reaching that original conclusion does not require proof of that likelihood being realised as an ascertainable fact, let alone a circumstance of aggravation requiring that to be proved beyond reasonable doubt, such that Olbrich does not apply. If such an evidentiary requirement does not apply at the first stage of imposing a sentence for contempt, as a matter of logic it cannot apply at any later stage of deciding whether that conclusion remains sound.