Lusty v CVA22

Case [2023] FCA 130

FEDERAL COURT OF AUSTRALIA

Lusty v CVA22 [2023] FCA 130  

File number(s): NSD 634 of 2022
Judgment of: THAWLEY J
Date of judgment: 23 February 2023
Catchwords: CONTEMPT OF COURT – sentencing – contempt of the Australian Criminal Intelligence Commission – respondent in contempt by refusing to answer questions in examination – where respondent pleaded guilty – fixed term of 8 months imprisonment imposed
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 4, 7, 24A, 25A(9), 28, 30(5), 34A(a)(ii), 34B, 46B

Criminal Code Act 1995 (Cth) ss 11.5(1), 302.2(1), 400.9(1)

Crimes Act 1900 (NSW) s 193C(2)

Criminal Procedure Act 1986 (NSW) s 82

Drug Misuse and Trafficking Act 1985 (NSW) s 24(2)

Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth)

Cases cited:

Anderson vGPY18 [2019] FCA 954

Australian Crime Commission v DTO21 [2022] FCA 288

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

Lusty v CRA20 [2020] FCA 1737

R v Qutami [2001] NSWCCA 353; 127 A Crim R 369

R v Sara [2020] NSWCCA 119

Sage v CFS22 [2022] FCA 1023

Wood v Staunton (No 5) (1996) 86 A Crim R 183

X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 82 
Date of hearing: [REDACTED]
Counsel for the Applicant: Ms J Single SC
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Mr A Djemal
Solicitor for the Respondent: Zahr Partners

ORDERS

NSD 634 of 2022
BETWEEN:

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

Applicant
AND:

CVA22

Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT DECLARES THAT:

1.The respondent is guilty of the charge of contempt of the Australian Criminal Intelligence Commission in that, being a witness appearing at an examination before an examiner on [REDACTED], the respondent refused to answer seven 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 imprisoned for eight months commencing [REDACTED] and ending on [REDACTED].

2.A warrant for the respondent’s committal to prison be issued and be provided to the Commissioner and Officers of the Australian Federal Police and Corrective Services NSW with a copy of these Orders.

3.Reserve liberty to the parties to apply in the event that the respondent purges his contempt before the expiration of the period of imprisonment.

4.The respondent pay the applicant’s costs of the application as agreed or assessed.

5.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.

(b)Within 7 days the parties…

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Details
AGLC
Lusty v CVA22 [2023] FCA 130
Case
[2023] FCA 130
Decision Date

CaseChat Overview and Summary

The case of Lusty v CVA22 involved the respondent, CVA22, who was charged with multiple offences and was remanded in custody. The Australian Criminal Intelligence Commission (ACIC) issued a summons under section 28 of the Australian Anti-Corruption Commission Act, requiring CVA22 to attend an examination. Despite being informed of the examination's confidentiality and separate purpose from his ongoing criminal proceedings, CVA22 refused to answer questions, leading to a charge of contempt of the ACIC. The respondent pleaded guilty to the contempt charge. The court had to decide on an appropriate sentence, considering the circumstances of the offence and the respondent's arguments for a lesser penalty.

The legal issues before the court encompassed the interpretation and application of the Australian Anti-Corruption Commission Act, particularly in the context of contempt proceedings. The court needed to assess the seriousness of the offence, the necessity of deterrence, and the respondent's arguments regarding the low objective seriousness of the offending and strong subjective circumstances. The court also had to consider the impact of the respondent's refusal to answer questions on the integrity of the ACIC's intelligence operations and the broader implications for the administration of justice.

In its reasoning, the court acknowledged the importance of the ACIC's operations and the necessity for witnesses to cooperate fully. It noted that the respondent's refusal to answer questions undermined the ACIC's ability to collect critical information and intelligence. The court found that the respondent's arguments for a lesser sentence did not sufficiently mitigate the contempt's seriousness. The court imposed an eight-month fixed term of imprisonment, starting from the date of the hearing. The court also reserved the liberty to apply if the respondent purged his contempt before the expiration of the imprisonment period. The court ordered the respondent to pay the applicant's costs and directed that the reasons for judgment not be published without redactions.

The final orders included a fixed term of imprisonment for eight months, issuance of a committal warrant, and reservation of liberty to apply if the respondent purged his contempt. The court also mandated that the parties provide a proposed redacted version of the reasons for judgment for publication. The costs of the application were to be paid by the respondent, and the reasons for judgment were to be kept confidential, with limited availability to parties and their legal representatives.

Orders

Orders of the court

1. The respondent be imprisoned for eight months commencing [REDACTED] and ending on [REDACTED].

2. A warrant for the respondent’s committal to prison be issued and be provided to the Commissioner and Officers of the Australian Federal Police and Corrective Services NSW with a copy of these Orders.

3. Reserve liberty to the parties to apply in the event that the respondent purges his contempt before the expiration of the period of imprisonment.

4. The respondent pay the applicant’s costs of the application as agreed or assessed.

5. 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.

(b) Within 7 days the parties provide to the Associate to Thawley 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.

Note: Order 1 was amended on 7 March 2023 to substitute [REDACTED] with [REDACTED] pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth).

Background

Background to the litigation

Section 34B(6) provides:(6)For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the Criminal Code applies as if:(a)contempt of the ACC were an offence; and(b)references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.BACKGROUND FACTS CVA22 was arrested on [REDACTED]. He was ultimately charged with the following offences:·[REDACTED];·[REDACTED];·[REDACTED]; and·[REDACTED]. Bail was refused and CVA22 has been remanded in custody since his arrest. CVA22’s matter remains before the Local Court where committal hearings are expected to proceed in [REDACTED] and [REDACTED]. It is anticipated that the trial will not be heard until late 2024 or early 2025. On [REDACTED], the applicant issued a summons pursuant to s 28 of the AAC Act which required the respondent to appear before the ACIC for examination on [REDACTED] (the First Examination). The summons was issued for the purposes of a special operation being undertaken by the ACIC, namely the High Risk and Emerging Drugs 2020 Special ACIC Operation authorised by the Special ACIC Operation Determination (High Risk and Emerging Drugs) 2020, dated 28 July 2020. In making the Determination, the Board of the ACIC (including the heads of all Australian police forces) determined that “it is in the public interest that the Board authorise the Special ACIC Operation”, being “an intelligence operation relating to specified criminal activity”. In doing so, the Board contemplated that it was necessary for the ACIC to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”. Paragraph 2 of the summons recorded that the examiner was, in accordance with s 28(1)(d)(i) of the AAC Act, “satisfied that it was reasonably necessary for the purposes of the ACIC operation” to examine CVA22 “even though [he had] been charged with related offences”. Before the commencement of the examination, the examiner made a Confidentiality Direction pursuant to s 25A(9) of the AAC Act. The Direction prohibited disclosure of the evidence given by CVA22 at the examination to any person involved in his prosecution, including for any “related offence” (as defined in s 4 of the ACC Act) in respect of the examination. The Direction further prohibited the use of such evidence for the purpose of any such prosecution. CVA22 attended the First Examination on [REDACTED] accompanied by his legal representatives Mr Strickland SC and Mr Tsavdaridis. CVA22 was advised by the applicant (the examiner) that he could raise any matters he wished before the commencement of the examination and that adjournments would be granted to allow him to speak with his counsel. The examiner explained that the purpose of the examination was “completely separate” from current criminal proceedings against him and was not being undertaken for the purpose of assisting or bolstering any current criminal proceedings against him. CVA22 was advised that the examination was being conducted in private with only members of the staff of the ACIC present, none of whom were involved in any of the current criminal proceedings against him. The examiner explained that the ACIC would treat the CVA22’s evidence as confidential, including because of the terms in the Direction. The examiner outlined the obligations of ACIC examination witnesses under the ACC Act, including the obligation to answer all questions truthfully even if doing so might incriminate the person or show that the person had committed an offence. The examiner gave CVA22 a ‘blanket’ or ‘automatic’ protection against self-incrimination under s 30(5) of the ACC Act and explained the effect of this protection. After the examiner’s opening remarks, CVA22 was granted an adjournment to speak to his legal representatives in private.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CVA22 submitted that, due to the “low objective seriousness of the offending” and the “strong subjective circumstances”, he does not present as a good vehicle for general deterrence, nor is a large measure of retribution warranted. CONCLUSION I accept that CVA22 is unlikely to purge his contempt before the conclusion of his criminal proceedings in the circumstances. There was no real dispute that the criminal proceedings would be unlikely to conclude before late 2024 or early 2025. I do not completely exclude him purging his contempt before that time as a possibility. If a determinate sentence is imposed, as it should be, none of the time served will be taken into account as time served in respect of any conviction in relation to the current criminal charges. In my view, an appropriate sentence having regard to the matters referred to earlier is 8 months imprisonment, reserving liberty to apply in the event CVA22 purges his contempt. CVA22 submitted that his sentence should be taken to have started earlier, noting that he notified his plea of guilty on 21 September 2022 and that the matter was originally listed for hearing on 5 November 2022. CVA22 was on remand in custody in any event. I am not satisfied the circumstances warrant an early commencement date. The eight months should commence from the date of hearing, namely [REDACTED].

Ratio Decidendi

Legal Principle Established

The summons was issued for the purposes of a special operation being undertaken by the ACIC, namely the High Risk and Emerging Drugs 2020 Special ACIC Operation authorised by the Special ACIC Operation Determination (High Risk and Emerging Drugs) 2020, dated 28 July 2020. In making the Determination, the Board of the ACIC (including the heads of all Australian police forces) determined that “it is in the public interest that the Board authorise the Special ACIC Operation”, being “an intelligence operation relating to specified criminal activity”. In doing so, the Board contemplated that it was necessary for the ACIC to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”. Paragraph 2 of the summons recorded that the examiner was, in accordance with s 28(1)(d)(i) of the AAC Act, “satisfied that it was reasonably necessary for the purposes of the ACIC operation” to examine CVA22 “even though [he had] been charged with related offences”. Before the commencement of the examination, the examiner made a Confidentiality Direction pursuant to s 25A(9) of the AAC Act. The Direction prohibited disclosure of the evidence given by CVA22 at the examination to any person involved in his prosecution, including for any “related offence” (as defined in s 4 of the ACC Act) in respect of the examination. The Direction further prohibited the use of such evidence for the purpose of any such prosecution. CVA22 attended the First Examination on [REDACTED] accompanied by his legal representatives Mr Strickland SC and Mr Tsavdaridis. CVA22 was advised by the applicant (the examiner) that he could raise any matters he wished before the commencement of the examination and that adjournments would be granted to allow him to speak with his counsel. The examiner explained that the purpose of the examination was “completely separate” from current criminal proceedings against him and was not being undertaken for the purpose of assisting or bolstering any current criminal proceedings against him. CVA22 was advised that the examination was being conducted in private with only members of the staff of the ACIC present, none of whom were involved in any of the current criminal proceedings against him. The examiner explained that the ACIC would treat the CVA22’s evidence as confidential, including because of the terms in the Direction. The examiner outlined the obligations of ACIC examination witnesses under the ACC Act, including the obligation to answer all questions truthfully even if doing so might incriminate the person or show that the person had committed an offence. The examiner gave CVA22 a ‘blanket’ or ‘automatic’ protection against self-incrimination under s 30(5) of the ACC Act and explained the effect of this protection. After the examiner’s opening remarks, CVA22 was granted an adjournment to speak to his legal representatives in private. After the adjournment, Mr Strickland SC informed the examiner that CVA22 would answer all questions except those relating to matters pertaining to the current criminal charges against him. Mr Strickland SC advised that CVA22’s criminal proceeding was listed for a case conference in the week after the First Examination. It was agreed that the First Examination would proceed to the extent possible without covering the subject matter of CVA22’s charges, and that the rest of the examination would be adjourned until after the case conference.