Lusty (Examiner) v DER22

Case [2023] FCA 255

FEDERAL COURT OF AUSTRALIA

Lusty (Examiner) v DER22 [2023] FCA 255

File number: NSD 812 of 2022
Judgment of: WIGNEY J
Date of judgment: 2 February 2023
Date of publication of reasons:  23 March 2023
Catchwords: CONTEMPT OF COURT – refusal to answer questions in Australian Crime Commission examination under s 34A(a)(ii) of Australian Crime Commission Act 2002 (Cth) – Court’s power to deal with contempt under s 34B of Australian Crime Commission Act 2002 (Cth) – consideration of principles relevant to fixing sentences for contempt – where contempt subsequently purged – consideration of respondent’s circumstances, including partial cooperation and personal circumstances – sentence of four months’ imprisonment – sentence suspended
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 4(1), 7, 7A(c), 24A(1), 28, 28(1)(a), 28(4), 30, 34A(a)(ii), 34B(1), 34B(1)(a), 34B(1)(b), 34B(5)

Crimes Act 1914 (Cth)

Federal Court of Australia Act1976 (Cth) s 31

Judiciary Act 1903 (Cth) s 24

Cases cited:

Anderson v BYF19 [2019] FCA 1959

Anderson v XLVII [2015] FCA 19

Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949

DTO21 v Australian Crime Commission [2022] FCAFC 190

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

Hannaford v HH (No 2) [2012] FCA 560

Hughes v Australian Competition and Consumer Commission (2004) 247 FCR 277; [2004] FCAFC 319

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

Sage v CFS22 [2022] FCA 1023

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

Wood v Galea (1995) 79 A Crim R 567
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 60
Date of hearing: 2 February 2023
Counsel for the Applicant:  Mr A Williams
Solicitor for the Applicant:  Australian Government Solicitor
Counsel for the Respondent:  Mr G Jones
Solicitor for the Respondent:  Katsoolis + Co. Solicitor and Attorneys

ORDERS

NSD 812 of 2022
BETWEEN:

DAVID LUSTY, AN EXAMINER APPOINTED UNDER S 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant
AND:

DER22

Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

2 FEBRUARY 2023

THE COURT DECLARES THAT:

1.The respondent is guilty of contempt of the Australian Crime Commission in that being a witness appearing at an examination before an examiner on 24 June 2022, the respondent refused to answer six questions which the examiner required him to answer, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth).

THE COURT ORDERS THAT:

1.The respondent be punished for the contempt the subject of the Court’s declaration as follows:

(a)The respondent be imprisoned for four months.

(b)The sentence of imprisonment be wholly suspended subject to the following conditions:

(i)The respondent be of good behaviour for a period of 12 months, commencing on 2 February 2023.

(ii)The respondent notify the applicant within seven days of any change from his current residential address.

(iii)The respondent appear in this court if called upon to do so, should it be…

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AGLC
Lusty (Examiner) v DER22 [2023] FCA 255
Case
[2023] FCA 255
Decision Date

CaseChat Overview and Summary

Lusty (Examiner) v DER22 is a case in which the respondent, DER22, was found in contempt of court for refusing to answer questions during an examination under the Australian Crime Commission Act 2002 (Cth). The applicant, Lusty, issued a summons requiring DER22 to attend an examination concerning specified matters, including money dealing, tax evasion, and encrypted communication devices used in criminal activities. DER22 attended the examination but refused to answer any questions beyond his name and address, despite being informed of the contempt consequences. The central legal issue before the court was whether the respondent’s refusal to answer questions constituted contempt of court and, if so, what the appropriate sentence should be.

The court considered principles relevant to fixing sentences for contempt, including the respondent’s circumstances, such as partial cooperation and personal factors. The court found that DER22’s explanation for refusing to answer questions was unconvincing and lacked credibility. The court noted that the respondent had not been charged with the indictable offence of failing to answer a question under the Australian Crime Commission Act, which was a separate matter. The court ultimately determined that the respondent’s actions constituted contempt of court and imposed a sentence of four months’ imprisonment, which was suspended subject to conditions such as maintaining good behaviour for 12 months and notifying the applicant of any address changes.

In conclusion, the court’s decision highlights the seriousness of contempt of court and the importance of complying with legal obligations during examinations. The court balanced the need to uphold the rule of law with the respondent’s circumstances, resulting in a suspended sentence that allowed for rehabilitation and deterrence. The final orders required DER22 to adhere to specific conditions to avoid further legal repercussions, ensuring that the court’s authority was respected and maintained.

Orders

Orders of the court

1. The respondent be punished for the contempt the subject of the Court’s declaration as follows:

(a) The respondent be imprisoned for four months.

(b) The sentence of imprisonment be wholly suspended subject to the following conditions:

(i) The respondent be of good behaviour for a period of 12 months, commencing on 2 February 2023.

(ii) The respondent notify the applicant within seven days of any change from his current residential address.

(iii) The respondent appear in this court if called upon to do so, should it be alleged that he has breached any condition of the suspension of his sentence of imprisonment.

2. The applicant have liberty to apply on seven days’ notice should it be alleged that the respondent has breached any of the conditions upon which his sentence of imprisonment has been suspended.

3. The respondent pay the applicant’s costs of and incidental to the application.

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

Background

Background to the litigation

Section 31 of the FCA Act does not create an offence of contempt, but rather defines or describes an attribute of judicial power of the Commonwealth vested in the federal courts under the Constitution: Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd (2002) 121 FCR 24; [2002] FCA 949 at [2]. It may be noted in this context that s 30 of the ACC Act creates an indictable offence of failing to answer a question in the examination. The respondent has not been charged with that offence. RELEVANT FACTS The following outline of the relevant facts relating to the respondent’s contempt is largely based on the mostly uncontested evidence adduced by the applicant. The respondent gave some brief evidence concerning the circumstances of his contempt. I will deal with the respondent’s evidence separately later in these reasons. On 11 June 2022, the applicant issued a summons to the respondent pursuant to s 28 of the ACC Act. The summons was stated to be for the purposes of a “special ACC investigation” being undertaken by the ACC, pursuant to the Special Australian Criminal Intelligence Commission Investigation Determination (Targeting Criminal Wealth) 2020. The summons required the respondent to appear before an examiner at an examination, at a specified place and time, to give evidence in relation to certain specified matters. Those specified matters included: dealing with money or other property, especially large amounts of cash that were the proceeds or instruments of crime, especially drug trafficking; tax evasion; the use of encrypted communication devices and platforms to facilitate such activities; the ongoing involvement of members and associates of a certain named organisation in such activities; the identities of other persons involved in such activities, including persons located overseas; and the nature and extent of the involvement of those persons. The respondent attended the examination at the specified place and time, though it appears that he was about an hour and a half late. He attended alone and was not legally represented at the time. At the commencement of the examination, the applicant gave the respondent a lengthy explanation of the nature of the examination. The respondent took an oath, and counsel assisting the applicant asked the respondent his name and address. The respondent answered those questions, but in response to the next fairly benign question, the respondent said that he would not be answering any further questions. He declined to explain why he was adopting that position. The applicant explained to the respondent that the consequence of him refusing to answer questions was that he would be committing a contempt and that, in those circumstances, the Commission would commence proceedings against him. The respondent said “okay”. The applicant then asked the respondent if he wanted a short break to think about the stance that he had taken. The respondent said that he would like to take a break and indicated that he would speak to his lawyer. There was then a 15-minute adjournment of the examination. After the break, the respondent produced some documents in answer to the summons. He also indicated that he had spoken to his lawyer, that his position had not changed, and that he was going to refuse to answer any more questions.

Evidence

Evidence Before The Court

The respondent gave some brief oral evidence concerning the circumstances of his contempt. He was cross-examined on behalf of the applicant. Evidence concerning the contempt The respondent’s evidence was, in summary, that officers of the Commission initially attempted to serve him at a worksite where he generally worked. He was not at the worksite at that time and the Commission’s officers gave the summons to one of his apprentices. The officers then followed the apprentice back to the respondent’s home. The point of that evidence appeared to be to somehow cast aspersions on the manner in which the summons was served. There was, however, ultimately no dispute that the respondent was served with the summons on the day in question. Moreover, as the respondent effectively conceded in cross-examination, a Commission officer had contacted him earlier that day in an attempt to arrange a more discrete and cooperative way in which to serve the summons. The respondent apparently declined, in emphatic and not complimentary terms, to participate in any such arrangement. In all the circumstances, I doubt that much turns on the means by which the respondent was served. After being served with the summons, the respondent took steps to seek legal advice. He spoke on the telephone with a lawyer who was based in Queensland. It may be inferred that the lawyer gave the respondent some legal advice about his obligations in respect of the summons, though the respondent did not disclose the content of that advice. It would appear, however, that the respondent expected the lawyer to attend and appear for him at the examination. The examination was to take place at a courthouse in a regional area of New South Wales. There were hints in the submissions made on the respondent’s behalf that the location of the examination was a matter of some significance. The suggestion appeared to be that the secrecy of the examination would not be able to be secured or preserved. Nothing in the respondent’s evidence, however, suggested that the location of the examination was a particularly material issue for him. The respondent agreed that he refused to answer the relevant questions put to him at the examination. When asked by his counsel to explain why he refused to answer those questions, his evidence was that his lawyer did not turn up on the day of the examination and that he panicked when he was asked the questions. He said that it took him some time to realise that that was the wrong decision. I found the respondent’s explanation of his actions at the initial examination to be somewhat unpersuasive and lacking in credibility. The transcript of the examination was in evidence. There is no hint in the transcript of any panic on the part of the respondent. Rather, the available inference from what was said during the examination is that the respondent had predetermined not to answer any substantive question that was put to him by the examiner. That does not appear to have been a spur of the moment decision brought on by panic. And while it may be accepted that the respondent’s lawyer did not attend the examination and that that may have been a matter of some concern to him, the respondent was nonetheless given an opportunity to speak with his lawyer over the telephone during the course of the examination.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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