CONTEMPT OF COURT - refusal to answer questions in Australian Criminal Intelligence Commission examination constituting contempt under s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) - appellant sentenced to 9 months imprisonment with liberty to apply in event that appellant purges contempt - whether primary judge erred by not making order that there be general liberty to apply - whether primary judge failed to consider unchallenged psychiatric evidence - whether respondent offended principle in Barbaro - whether primary judge failed to have regard to utilitarian value of early guilty plea - whether sentence is manifestly excessive - whether primary judge failed to exercise discretion in awarding costs - appeal dismissed
PRACTICE AND PROCEDURE - interlocutory application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and 'confidentiality' order pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) - whether ground in s 37AG established - relevance of statutory scheme of Australian Crime Commission Act 2002 (Cth) - application allowed in part
[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.
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AGLC
LAZ24 v Purcell (Examiner) [2025] FCAFC 132
Case
[2025] FCAFC 132
Decision Date
CaseChat Overview and Summary
In the appeal of LAZ24 v Purcell, the appellant challenged the decision of the primary judge in the Federal Court of Australia, where the appellant was found in contempt of court for refusing to answer questions during an examination by the Australian Criminal Intelligence Commission (ACIC). The appeal was dismissed by the court, which also granted the respondent's application for suppression and confidentiality orders in part. The appellant, LAZ24, was sentenced to nine months imprisonment with the liberty to apply to purge the contempt if certain conditions were met. The appellant argued that the primary judge erred in various respects, including not making an order that there be general liberty to apply, not considering unchallenged psychiatric evidence, and sentencing being manifestly excessive. The court found these arguments unpersuasive and dismissed the appeal.
The legal issues addressed by the court included whether the primary judge erred in not making an order for general liberty to apply, not considering unchallenged psychiatric evidence, and sentencing being manifestly excessive. The court found that the primary judge exercised their discretion appropriately and that there was no error in the sentence imposed. The court also considered the respondent's application for suppression and confidentiality orders and allowed the application in part, while dismissing it in other respects. The court found that the orders were necessary to protect the safety of the appellant and to maintain the integrity of the compulsory examination process as an important investigative tool bestowed upon the ACIC.
The court's reasoning was based on the evidence presented during the proceedings, as well as the applicable legislation and legal principles. The court found that the primary judge had considered all relevant factors in imposing the sentence, including the unchallenged psychiatric evidence, and that the sentence was not manifestly excessive. The court also found that the suppression and confidentiality orders were necessary to protect the safety of the appellant and to maintain the integrity of the compulsory examination process. In conclusion, the appeal was dismissed, and the suppression and confidentiality orders were granted in part. The appellant was ordered to pay the respondent's costs of the appeal, while the respondent was ordered to pay the appellant's costs of the interlocutory application.
Orders
Orders of the court
1. The appellant is granted leave to rely on an amended notice of appeal dated 21 August 2025.
2. Leave to appeal against the primary judge's order that the appellant pay the respondent's costs is refused.
3. The appeal is dismissed.
4. Subject to order 8, the appellant is to pay the respondent's costs of the appeal.
5. Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), and on the ground in s 37AG(1)(a):
(a) disclosure of any information tending to reveal the identity of the appellant as a party to these proceedings is prohibited; and
(b) disclosure of any documents filed in these proceedings is prohibited.
6. Order 5:
(a) operates for the period from 19 September 2025 to 31 January 2028; and
(b) does not prevent disclosure to and between the following persons:
(i) judges of this Court;
(ii) necessary Court staff (including transcription service providers);
(iii) the parties;
(iv) legal representatives of the parties instructed in the proceeding;
(v) any medical practitioner and/or psychologist retained by a party for the purpose of providing an expert opinion/report with respect to the appellant in the proceeding;
(vi) Commonwealth Ministers;
(vii) the CEO of the Australian Criminal Intelligence Commission (ACIC), examiners and the members of the staff of the ACIC;
(viii) judicial officers and necessary staff of any court hearing an appeal from any decision made in the course of this proceeding;
(ix) any person retained by a party specifically on the issue of costs;
(x) any person appointed by the Court for the purpose of the assessment of costs; and
(xi) officers and necessary staff of Corrections NSW and police officers for the purpose of effecting any warrant of imprisonment or administering any sentence imposed as a result of the proceedings.
7. Pursuant to s 37AF(1)(a) of the Federal Court Act, and on the ground in s 37AG(1)(c), disclosure of any information tending to reveal the identity of:
(a) counsel who assisted the respondent during the examinations of the appellant;
(b) the ACIC employee who made a statutory declaration recording service on the appellant of the summons to appear before an examiner issued under s 28 of the Australian Crime Commission Act 2002 (Cth);
(c) the ACIC employee who witnessed the making of the statutory declaration referred to in order 7(b); and
(d) the ACIC employee who witnessed the affidavit of counsel assisting the respondent, which was affirmed on 28 October 2024,
is prohibited.
8. The respondent is to pay the appellant's costs of the interlocutory application filed on 26 August 2025.
9. The parties have liberty to apply generally for suppression orders or non-publication orders under s 37AF of the Federal Court Act.
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
Therefore, we would dismiss ground 1.Ground 2(a) - The primary judge failed to attribute weight to unchallenged psychiatric evidence The appellant asserts that the primary judge erred by 'failing to attribute weight to the unchallenged psychiatric material'. However, at the hearing of the appeal senior counsel confirmed that this ground of appeal is concerned with a contention that the primary judge erred in the exercise of his sentencing discretion by failing to take into account a mandatory relevant consideration, namely 'unchallenged psychiatric evidence'. To properly understand the ground of appeal it is necessary to say something further about the proceedings before the primary judge and also about his Honour's reasons. At sentencing, the appellant relied on a report prepared by a psychiatrist. The respondent did not object to the report being used as evidence for the purposes of sentence, and did not require the psychiatrist to be made available for cross-examination. In fact, counsel for the respondent who appeared at sentencing told the primary judge that the psychiatrist was an 'experienced and, in fact, impressive forensic psychiatrist, well known by the courts, [whose] evidence would typically be expected to be accepted'. As his Honour observed, the psychiatric report set out the appellant's history, including the appellant's psychiatric and medical history, as well as a document review. The report also includes a mental state examination, together with a psychiatric diagnosis and opinions. In that regard, the psychiatrist diagnosed the appellant with an adjustment disorder, anxiety and depression. The primary judge noted that according to the psychiatrist, adjustment disorder is a clinically significant response to an adverse life event. The psychiatrist opined that in the appellant's case, the relevant adverse life event was being required by the ACIC to answer questions, 'and his perception that he could not answer the questions put to him because of a genuine fear for his own safety'. The psychiatrist said that the appellant's report of panic was part of the syndrome of adjustment disorder. The primary judge noted that the psychiatrist's opinions included the following:(a)The appellant's cognitive function and judgment at the time he was to be examined by the ACIC 'is likely to have been affected by his level of anxiety, and also the tranquilising effect of diazepam. However, [the appellant] maintained that he made a conscious decision not to answer questions because of the genuine belief that he and members of his family would be placed in danger if he did so'.(b)The appellant has some previous experience of prison, and so the main burden of imprisonment would fall on his immediate family and a relative, for whom he is a carer, and that it would also effectively mean that his business would have to close.(c)The natural history of adjustment disorder is to recover over time once the cause of the symptoms has been resolved or faded into the past. Supportive counselling has not been available to the appellant because of the secret nature of the ACIC examination.
Decision
Reasons for decision
We would dismiss ground 4.Conclusion As we have already stated, we would dismiss all of the grounds of appeal on which the appellant relies. Therefore, we would also dismiss the appeal. We would also make an order that the appellant pay the respondent's costs of the appeal. It is now necessary to deal with the respondent's application for suppression and confidentiality orders.The respondent's interlocutory application for suppression and 'confidentiality' orders Prior to the hearing of the appeal, the Court made orders that any party wishing to apply for suppression orders pursuant to s 37AF of the Federal Court Act was required to file an interlocutory application, together with supporting materials, in advance of the hearing. However, no such application was made until after the hearing was completed, when the respondent eventually filed an application seeking various suppression orders pursuant to s 37AF(1) of the Federal Court Act, as well as a 'confidentiality' order pursuant to r 2.32 of the Federal Court Rules. The respondent's application is supported by an affidavit affirmed by a solicitor employed at the Australian Government Solicitor. However, that affidavit seeks only to explain why the respondent did not file the application before the hearing of the appeal. At para 4 of the respondent's reply to the appellant's written submissions relating to the application, it is said that the respondent relies on 'the matters before the Court with respect [to] the Appeal and the primary judgment' to justify the making of the orders sought. There are three categories of orders sought. The first category of orders concerns the appellant. The respondent seeks orders that prohibit the disclosure of the appellant's name, address and any other information that directly or indirectly identifies the appellant. The respondent also seeks an order that the appellant be identified by a pseudonym. In the second category of orders the respondent seeks are orders that prohibit the disclosure of the name of counsel assisting the respondent at the examinations that were conducted with the appellant, as well as the names of various other ACIC employees. The third category of orders concerns the documents filed in the appeal. In that respect, the respondent seeks an order that those documents are to be treated as confidential and marked as such on the Court file. The respondent seeks orders in respect of each of those categories on the ground that they are necessary to prevent prejudice to the proper administration of justice, and to protect the safety of any person, pursuant to paragraphs (a) and (c) of s 37AG(1) of the Federal Court Act, respectively. In particular, the respondent submits that the orders are necessary to:(a)maintain the integrity of the compulsory examination process as an important investigative tool bestowed upon the ACIC;(b)ensure consistency with the statutory prohibitions and restrictions on the use and disclosure of ACIC examination material, which includes the fact that the appellant attended an ACIC examination, the content of the examination, and any information that might enable the appellant to be identified as a person who has given evidence before an examiner at an examination; and(c)protect the safety of the appellant, particularly in circumstances where he may yet decide to purge his contempt.