FEDERAL COURT OF AUSTRALIA
Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214
Citation: Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214 Parties: JOHN PLANTA HANNAFORD, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 v HH File number: VID 869 of 2010 Judge: DODDS-STREETON J Date of judgment: 17 November 2010 Catchwords: CONTEMPT – respondent charged with contempt of the Australian Crime Commission under Australian Crime Commission Act 2002 (Cth) (“the Act”) s 34A(a)(ii) (refusing or failing to answer questions) and s 34A(d) (obstructing or hindering the examiner in the course of his duties) – purpose of recent amendments to the Act – consideration of relevant legal principles – respondent pleads guilty to contempt under s 34A(a)(ii) – whether respondent should be imprisoned until further order
PRACTICE AND PROCEDURE – Federal Court of Australia Act 1974 (Cth) s 50 – order sought prohibiting publication of the respondent’s name and address – order made sealing the Court file
Legislation: Australian Crime Commission Act 2002 (Cth), ss 34A, 34B, 34C, 46B
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
Federal Court of Australia Act 1976 (Cth), s 50
Federal Court Rules, O 1 r 8; O 7 r 4ACases cited: Royal Commissioner v Staunton [1995] NSWSC 45 (19 September 1995)
Von Doussa v Owens (No 3) [1982] 31 SASR 116 (Oct 7)
Wood, Honourable Justice v Galea [1995] NSWSC 100 (26 October 1995)Date of hearing: 22 October, 4 November, 5 November 2010 Date of last submissions: 17 November 2010 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: Mr G Livermore Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr J Gullaci Solicitor for the Respondent: Balmer & Associates
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 869 of 2010
BETWEEN: JOHN PLANTA HANNAFORD, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002
Applicant
AND: HH
Respondent
JUDGE:
DODDS-STREETON J
DATE OF ORDER:
5 NOVEMBER 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The respondent, [CONFIDENTIAL], is guilty of contempt of the Australian Crime Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness who had been summonsed to attend and to give evidence before the applicant, John Planta Hannaford, an examiner, on [CONFIDENTIAL], he refused to answer the questions set out in the Certificate [CONFIDENTIAL] which the examiner directed him to answer.
The respondent is committed to imprisonment for contempt of the Australian Crime Commission, until further order.
The respondent pay the applicant’s costs of the application.
There be liberty to apply.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA…
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- Hannaford v HH [2010] FCA 1214
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CaseChat Overview and Summary
The primary legal issue before the court was whether the examiner's reference of the defendant to the Supreme Court for contempt proceedings complied with the requirements set out in the Australian Crime Commission Act 2002. Specifically, the court needed to determine if the certificate submitted by the examiner was sufficient prima facie evidence of contempt and whether the contempt proceedings adhered to the ordinary rules and procedures of the Supreme Court.
The court held that the examiner's certificate, which included the grounds for the application and evidence supporting the allegation of contempt, constituted prima facie evidence of contempt as intended by the legislation. The court further found that the examiner's power to refer the matter to the Supreme Court for contempt proceedings was valid, and the proceedings themselves were conducted in accordance with the ordinary rules and procedures of the court. The threat of detention under contempt proceedings was seen as an effective measure to ensure compliance with examination requirements.
The court ordered that the contempt proceedings against the defendant would proceed as per the ordinary rules and procedures of the Supreme Court, affirming that the examiner's certificate was adequate for establishing the prima facie case of contempt.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Ratio Decidendi
Legal Principle Established
The Explanatory Memorandum set out the objectives of the amendment as follows:Rationale for changesThis item will implement the key recommendation of the Trowell Report, and respond to the recommendations of the PJC-ACC, by providing an examiner with the power to refer uncooperative witness to a superior court to be dealt with as if the witness was in contempt of that court.Under the new contempt provisions, the ACC, where appropriate, will be able to deal promptly with an uncooperative witness, while avoiding the delays which are a part of the prosecution process.Allowing an examiner to refer a person to a court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses contempt proceedings bring with them the threat of immediate detention. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention.Allowing a person to be dealt with through contempt provisions will maintain the integrity of the examination process as an important investigative and intelligence-gathering tool in combating serious and organised crime. The new contempt procedures will bring the ACC into line with other State and Territory agencies similar to the ACC who have had contempt provisions for some time. The experience of those agencies is that the power to cite an uncooperative witness for contempt is used sparingly, and that the threat of such action will be often sufficient to secure compliance. The Explanatory Memorandum stated:Section 34CSection 34C will provide that contempt proceedings are to be conducted in accordance with the ordinary rules and procedures of the Court to which the examiner applies. This will ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of. The examiner will simply be a party to the proceeding.Subsection 34C(3) will also provide that the certificate submitted under subsection 34B(3) by the examiner stating the grounds for making the application and evidence in support of that application is prima facie evidence showing contempt of the ACC. This will allow the court to find the facts of the alleged contempt without necessarily having to rely on any oral testimony. This does not prevent the defendant fromchallenging the evidence. However, if there is no dispute as to the facts, the certificate will expedite the contempt proceedings. Legislation similar to ss 34A-34F of the Act, such as provisions of the Royal Commissions Act 1923 (NSW) (“Royal Commissions Act”), has been considered in a number of authorities. In Royal Commissioner v Staunton [1995] NSWSC 45 (19 September 1995) (“Staunton”), Dunford J referred to s 17 of the Royal Commissions Act and summarised the effect of the legislation (at [3]). As with the legislation at issue in the present matter, a certificate was prima facie evidence of the matters certified. The certificate indicated that the Commissioner had asked the defendant a number of questions, some of which he refused to answer.