Lusty (Examiner) v ITT24

Case [2025] FCA 141

FEDERAL COURT OF AUSTRALIA

Lusty (Examiner) v ITT24 [2025] FCA 141

File number: NTD 20 of 2024
Judgment of: VANDONGEN J
Date of judgment: [REDACTED]
Date of publication of reasons: 5 March 2025
Catchwords:

CONTEMPT OF COURT - refusal to take oath or affirmation when required to do so under s 28 of the Australian Crime Commission Act 2002 (Cth) contrary to s 34A(a)(i) of the Act - refusal to answer questions in examination contrary to s 34A(a)(ii) of the Act - Court's power to deal with contempt under s 34B of the Act - consideration of principles relevant to imposing penalty for contempt - where respondent refuses to purge contempt - sentence of immediate imprisonment imposed

PRACTICE AND PROCEDURE - Federal Court of Australia Act 1976 (Cth) s 37AF - order made restricting the publication of reasons for judgment
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 4, 7, 7A, 7C, 24A, 25A, 28, 29A, 29B, 33, 34A, 34B, 34C, 46B

Evidence Act 1995 (Cth) s 4

Federal Court Rules 2011 (Cth) rr 42.12, 42.15, Part 42

Australian Crime Commission Regulations 2018 (Cth) reg 8

Sentencing Act 1995 (NT) s 63
Cases cited:

Anderson v BYF19 [2019] FCA 1959

Anderson v XLVII [2015] FCA 19

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

Australian Competition and Consumer Commission v Levi (No 3) [2008] FCA 1586

Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213

Ferguson v Dallow (No 5) [2021] FCA 698

Grocon Constructors (Victoria) Pty Ltd v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134; (2014) 241 IR 288

Hannaford (an Examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214; (2010) 205 A Crim R 366

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

JFB v The State of Western Australia [2024] WASCA 41

Lusty (Examiner) v DEZ22 (No 2) [2023] FCA 858

Sage v AYI23 [2023] FCA 1336

Seven Network (Operations) Ltd v Dowling (No 2) [2021] NSWSC 1106

The State of Western Australia v Rayapen [2023] WASCA 55

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: Northern Territory
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 84
Date of hearing: [REDACTED]
Counsel for the Applicant: Ms E Farroukh
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr R Size
Solicitor for the Respondent: Bryson Kelly Legal

ORDERS

NTD 20 of 2024
BETWEEN:

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

Applicant
AND:

ITT24

Respondent

ORDER MADE BY:

VANDONGEN J

DATE OF ORDER:

[REDACTED]

THE COURT DECLARES THAT:

1.The respondent is guilty of contempt of the Australian Criminal Intelligence Commission in that on [redacted],…

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Details
AGLC
Lusty (Examiner) v ITT24 [2025] FCA 141
Case
[2025] FCA 141
Decision Date

CaseChat Overview and Summary

Lusty, an examiner of the Australian Criminal Intelligence Commission (ACIC), brought contempt proceedings against ITT24, who had been summoned to give evidence in an examination related to a special operation targeting drug offences. ITT24 refused to take an oath, answer questions, or comply with the summons, leading to charges under the Australian Crime Commission Act 2002 (Cth). The court determined that ITT24's refusal to comply with the summons constituted contempt of court. The legal issues included whether ITT24's actions were contemptuous and the appropriate penalty to impose. The court found that ITT24's refusal to take an oath and answer questions was a clear contempt, and sentenced him to 12 months imprisonment on each charge, to run concurrently. The court also ordered that the reasons for judgment not be published and directed the parties to provide a redacted version for potential publication. The final orders included a commitment to prison, liberty to apply if ITT24 purged his contempt, and an order for ITT24 to pay the applicant's costs.

Orders

Orders of the court

3. On the first charge of contempt, the respondent is sentenced to a term of imprisonment of 12 months, which sentence is to commence on [redacted].

4. On the second charge of contempt, the respondent is sentenced to a term of imprisonment of 12 months, which sentence is to commence on [redacted].

5. A warrant for the respondent's committal to prison be issued and with a copy of these Orders, be provided to the Darwin Correctional Centre, Northern Territory.

6. There be liberty to apply if the respondent purges his contempt before 12 December 2025.

7. The respondent is to pay the applicant's costs of the application, in the amount of $25,976.39.

8. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c):

(a) 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; and

(b) within seven days the parties provide to the Associate to Vandongen 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

Counsel for the respondent informed the court at the hearing of this matter that he was proceeding on the basis that the Evidence Act 1995 (Cth) did not apply as these proceedings relate to sentencing: s 4(2) of the Evidence Act. Counsel indicated that he intended making submissions about the weight that should be given to certain evidence relied on by the applicant. In the absence of any suggestion that the court should make a direction under s 4(2) or s 4(3) of the Evidence Act, I will proceed on the basis that the rules of evidence do not apply to these proceedings.The facts I find the following facts based on the unchallenged evidence relied on by the applicant. The applicant is an examiner of the ACIC who was re-appointed under s 46B of the ACC Act on 9 December 2021. On 17 May 2024, and pursuant to s 28 of the ACC Act, the applicant issued a summons to the respondent to appear before him to give evidence at an examination on [redacted]. The summons contained a notation made in accordance with s 29A of the ACC Act, which prohibited disclosure of the existence of the summons, except in defined circumstances. The summons was issued for the purposes of a special ACC operation, namely the Drugs 2022 Special Operation, which had been authorised by the Special Australian Criminal Intelligence Operation Determination (Drugs) 2022, dated 12 December 2022 (Determination). The purposes of the Drugs 2022 Special Operation include collecting, correlating and analysing criminal information and intelligence about a wide range of drug offences that may have been, may be being, or may in the future be committed. The Drugs 2022 Special Operation is ongoing and will continue until the Determination ceases to remain in force on 12 December 2025 pursuant to s 7C(4G)(b)(i) of the ACC Act. The examiner intended to require the respondent to answer questions in connection with the Drugs 2022 Special Operation, including questions the general nature of which were referred to on the face of the summons. It was specifically intended that the respondent would be asked questions about, but not limited to, his knowledge and involvement with the importation, manufacture, possession and trafficking of border-controlled drugs, as well as the identities, roles and locations of other persons involved in such conduct. The respondent attended before the applicant in answer to the summons. Also in attendance was the respondent's legal representative. Before the examination commenced, the respondent met in private with his legal representative and also with the ACIC lawyer assigned to appear as counsel assisting at the examination. At the start of the examination, counsel assisting advised the examiner, in the presence of the respondent, that she had explained to the respondent a draft confidentiality direction, the protections against self-incrimination that would be afforded to him, the requirement to be sworn and the potential for prosecution for contempt. Counsel also advised the examiner that the respondent nevertheless did 'not intend to comply with the process and the obligations under the [s]ummons'.

Evidence

Evidence Before The Court

The respondent did not give any evidence or call any witnesses to give oral evidence. In fact, the respondent did not adduce any evidence at all.Objections to the evidence The respondent did not object to the evidence relied on by the applicant. Counsel for the respondent informed the court at the hearing of this matter that he was proceeding on the basis that the Evidence Act 1995 (Cth) did not apply as these proceedings relate to sentencing: s 4(2) of the Evidence Act. Counsel indicated that he intended making submissions about the weight that should be given to certain evidence relied on by the applicant. In the absence of any suggestion that the court should make a direction under s 4(2) or s 4(3) of the Evidence Act, I will proceed on the basis that the rules of evidence do not apply to these proceedings.The facts I find the following facts based on the unchallenged evidence relied on by the applicant. The applicant is an examiner of the ACIC who was re-appointed under s 46B of the ACC Act on 9 December 2021. On 17 May 2024, and pursuant to s 28 of the ACC Act, the applicant issued a summons to the respondent to appear before him to give evidence at an examination on [redacted]. The summons contained a notation made in accordance with s 29A of the ACC Act, which prohibited disclosure of the existence of the summons, except in defined circumstances. The summons was issued for the purposes of a special ACC operation, namely the Drugs 2022 Special Operation, which had been authorised by the Special Australian Criminal Intelligence Operation Determination (Drugs) 2022, dated 12 December 2022 (Determination). The purposes of the Drugs 2022 Special Operation include collecting, correlating and analysing criminal information and intelligence about a wide range of drug offences that may have been, may be being, or may in the future be committed. The Drugs 2022 Special Operation is ongoing and will continue until the Determination ceases to remain in force on 12 December 2025 pursuant to s 7C(4G)(b)(i) of the ACC Act. The examiner intended to require the respondent to answer questions in connection with the Drugs 2022 Special Operation, including questions the general nature of which were referred to on the face of the summons. It was specifically intended that the respondent would be asked questions about, but not limited to, his knowledge and involvement with the importation, manufacture, possession and trafficking of border-controlled drugs, as well as the identities, roles and locations of other persons involved in such conduct. The respondent attended before the applicant in answer to the summons. Also in attendance was the respondent's legal representative. Before the examination commenced, the respondent met in private with his legal representative and also with the ACIC lawyer assigned to appear as counsel assisting at the examination. At the start of the examination, counsel assisting advised the examiner, in the presence of the respondent, that she had explained to the respondent a draft confidentiality direction, the protections against self-incrimination that would be afforded to him, the requirement to be sworn and the potential for prosecution for contempt. Counsel also advised the examiner that the respondent nevertheless did 'not intend to comply with the process and the obligations under the [s]ummons'.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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