Lusty v EZJ25

Case [2025] FCA 1068

FEDERAL COURT OF AUSTRALIA

Lusty v EZJ25 [2025] FCA 1068

File number(s): NSD 632 of 2025
Judgment of: ABRAHAM J
Date of judgment: 5 September 2025
Catchwords: CONTEMPT OF COURT – contempt – contempt of the Australian Criminal Intelligence Commission – contempt punishable as contempt of Federal Court – respondent in contempt by refusing to answer questions in examination – where respondent pleaded guilty – where contempt not subsequently purged
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7, 7A(a)-(c), 7C(2), 7C(3), 19A, 21A, 20, 21, 22, 28, 34A(a)(ii), 34B(1)(a), 34B(5), 46B

Federal Court of Australia Act 1976 (Cth) s 31

Federal Court Rules 2011 (Cth) pt 42

Cases cited:

Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425

Anderson v BYF19 [2019] FCA 1959

Anderson v DKH18 [2018] FCA 1571

Anderson v DKH18 (No 2) [2019] FCA 1352

Anderson v GPY18 [2019] FCA 954

Anderson v XLVII [2015] FCA 19

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

Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809

DTO21 v ACC [2022] FCAFC 190

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

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

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

Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90

Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494

Lusty v CRA20 [2020] FCA 1737

R v Drever [2010] SASCFC 27

Sage v AYI23 [2023] FCA 1336

Von Doussa v Owens (No 3) [1982] SASC 6369; (1982) 31 SASR 116

Wood, Honourable Justice v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567

Wood v Staunton (No 5) (1996) 86 A Crim R 183
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 51
Date of hearing: [REDACTED]
Counsel for the applicant Mr Williams
Solicitor for the applicant Australian Government Solicitor
Counsel for the respondent Mr Pace
Solicitor for the respondent Crimcorp Defence Lawyers

ORDERS

NSD 632 of 2025
BETWEEN:

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

Applicant
AND:

EZJ25

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

5 SEPTEMBER 2025

THE COURT DECLARES THAT:

1.The respondent is guilty of seven counts of contempt of the Australian Criminal Intelligence Commission (ACIC) in that, on [REDACTED], when appearing as a witness at an examination before the applicant, he refused or failed to answer seven questions that he was required to answer by the applicant, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (ACC Act).

THE COURT ORDERS THAT:

1.The respondent is sentenced to a term of imprisonment of 6 months to…

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Lusty v EZJ25 [2025] FCA 1068
Case
[2025] FCA 1068
Decision Date

CaseChat Overview and Summary

The case of Lusty v EZJ25 involved the respondent, EZJ25, who was summoned to appear before the Australian Criminal Intelligence Commission (ACIC) for examination. The ACIC, established under the Australian Crime Commission Act 2002, conducts examinations to collect and analyse criminal intelligence. EZJ25 was required to answer questions during his examination but refused to do so, leading to a finding of contempt of the ACIC, which was treated as contempt of the Federal Court of Australia. EZJ25 pleaded guilty to the contempt but did not subsequently purge it, leading to the imposition of a sentence.

The primary legal issue before the court was the appropriate penalty for EZJ25's contemptuous behaviour during the ACIC examination. The court needed to determine whether the penalty should be a term of imprisonment, a fine, or some other form of punishment. Given that EZJ25 deliberately refused to answer questions despite being informed of the legal consequences, the court had to weigh the objective seriousness of the contempt against the subjective circumstances and the need for deterrence.

The court considered the deliberate nature of EZJ25's contempt and its impact on the ACIC's investigation. It found that EZJ25's refusal to answer questions undermined the effectiveness of the statutory scheme that authorised compulsory examinations. The court rejected EZJ25's arguments regarding the timing of the summons and the impact on his potential criminal proceedings, finding them to be unsubstantiated. The court also noted that the information sought could not be obtained through other means. Ultimately, the court imposed a term of imprisonment of 6 months, with 4 months to be served and the remainder suspended on the condition that EZJ25 be of good behaviour for 2 years.

The court ordered that EZJ25 be imprisoned for 4 months, with the custodial period running from a specified date in 2025 to a specified date in 2026. The remainder of the sentence was suspended, contingent on EZJ25 maintaining good behaviour for 2 years from the end of the custodial period. Additionally, a warrant for his committal was issued, and he was required to pay the applicant's costs of the application, to be agreed or assessed.

Orders

Orders of the court

1. The respondent is sentenced to a term of imprisonment of 6 months to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.

2. The custodial period of 4 months’ imprisonment is to date from [REDACTED] 2025 to [REDACTED] 2026, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on [REDACTED] 2026 and expiring on [REDACTED] 2028.

3. A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.

4. The respondent is to pay the applicant’s costs of the application to be agreed or assessed.

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

Background

Background to the litigation

The respondent and Mr Albassit were required for cross-examination.Statutory and regulatory background In previous judgments I have outlined the relevant statutory background. The following is taken from those descriptions. The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special ACC operations” and “special ACC investigations” relating to “federally relevant crime”: s 7A(a)-(c). The Board of the ACIC (the Board) makes determinations pursuant to ss 7C(2) and (3) to authorise special ACIC operations and special ACIC investigations to occur. In carrying out the ACIC’s functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 19A, 21A, 20-22 of the ACC Act. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28 of the ACC Act. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30 of the ACC Act. It is evident that the examination of persons by examiners, such as the respondent in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: Anderson v DKH18 [2018] FCA 1571 (DKH18) at [6]; Anderson v XLVII [2015] FCA 19 (XLVII) at [15]. Persons appearing as witnesses at an examination before an ACIC examiner are in contempt of the ACIC if they refuse or fail to answer a question which they are required to answer by the examiner: s 34A(a)(ii) of the ACC Act. If an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to this Court for the person to be dealt with in relation to the contempt: s 34B(1)(a). If the Court finds the person was in contempt of the ACIC, the Court may deal with the person as if the acts or omissions involved constituted contempt of this Court: s 34B(5) of the ACC Act. Contempt of this Court is addressed by s 31 of the Federal Court of Australia Act 1976 (Cth), and the procedure for punishment is contained in Pt 42 of the Federal Court Rules 2011 (Cth).The summons The relevant summons was issued to the respondent on [REDACTED], which required him to attend an examination before the applicant on [REDACTED] (the Summons). The evidence establishes that on 12 December 2022, the ACIC commenced a special ACIC operation under the Special Australian Criminal Intelligence Commission Operation Determination (Drugs) 2022 (the Drugs 2022 SO and the Drugs 2022 Determination, respectively). The purposes of Drugs 2022 SO include identifying those persons and entities involved in the commission of Specified Drug Offences (including organised crime groups, associates, and facilitators (such as government officials and private sector professionals)); identifying the relationships between different persons and entities involved in the commission of Specified Drug Offences; understanding the methods and techniques used in the commission of Specified Drug Offences; understanding the dynamic and changing environment in which Specified Drug Offences are committed; and identifying emerging techniques, equipment and materials in the manufacture of substances relevant to Specified Drug Offences, and methods of transport and importation of substances relevant to Specified Drug Offences.

Evidence

Evidence Before The Court

For the reasons set out below, I impose a term of imprisonment of 6 months to be released after serving 4 months and the remainder of the sentence to be suspended on the basis that the respondent be of good behaviour for a period of 2 years.Evidence relied on In support of the application, the applicant read the following affidavits: (1)Cameron Hutchins, affirmed 24 April 2025;(2)Cameron Hutchins, affirmed 26 May 2025; and(3)Jason Leigh Halls, sworn 27 May 2025. Mr Halls was required for cross-examination. The respondent read affidavits of the following persons:(1)the respondent, sworn 27 June 2025;(2)the respondent’s father, sworn 23 June 2025; and(3)the interpreter, Bassam Ashqar, sworn 27 June 2025. In addition, the respondent tendered Exhibit-R1 (a series of photographs) and Exhibit-R2 (a psychological report prepared by Mr Albassit). The respondent and Mr Albassit were required for cross-examination.Statutory and regulatory background In previous judgments I have outlined the relevant statutory background. The following is taken from those descriptions. The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special ACC operations” and “special ACC investigations” relating to “federally relevant crime”: s 7A(a)-(c). The Board of the ACIC (the Board) makes determinations pursuant to ss 7C(2) and (3) to authorise special ACIC operations and special ACIC investigations to occur. In carrying out the ACIC’s functions, examiners appointed under Div 3 of Pt 2 of the ACC Act may require the production of specified information or documents, and examiners or police officers on the staff of the ACIC may obtain and execute search warrants: ss 19A, 21A, 20-22 of the ACC Act. An examiner may summon a person to appear before the examiner to give evidence and to produce such documents or other things as are referred to in the summons: s 28 of the ACC Act. It is an offence for persons summonsed to appear as a witness at an examination not to attend as required, to refuse or fail to take an oath or affirmation as required, to refuse or fail to answer a question that they are required to answer, and to refuse or fail to produce a document or thing which they were required by the summons to produce: s 30 of the ACC Act. It is evident that the examination of persons by examiners, such as the respondent in this case, is an important means by which the ACIC obtains information relevant to the discharge of its functions: Anderson v DKH18 [2018] FCA 1571 (DKH18) at [6]; Anderson v XLVII [2015] FCA 19 (XLVII) at [15]. Persons appearing as witnesses at an examination before an ACIC examiner are in contempt of the ACIC if they refuse or fail to answer a question which they are required to answer by the examiner: s 34A(a)(ii) of the ACC Act. If an examiner is of the opinion that a person is in contempt of the ACIC during an examination, the examiner may apply to this Court for the person to be dealt with in relation to the contempt: s 34B(1)(a).

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

There is no prescribed or maximum penalty for a contempt of this nature. There are a range of penalties available: see Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, in which the Full Court (French, Emmett and Dowsett JJ) at [55] citing Nicholson J in Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949; (2002) 121 FCR 24 at [138], set out the range as follows, being to: (1) commit a contemnor to prison for an indefinite period of time; (2) to impose a fine for a wilful breach of an order or undertaking; (3) to impose a daily fine; (4) to order the sequestration of the assets of a contemnor; and (5) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt.Consideration The respondent submitted that his case is unusual because despite a significant investigation from 2022, the respondent was not charged alongside [REDACTED] other individuals [REDACTED], and he was not brought before ACIC until six months after the arrest of the last individuals. He submitted that this impacted on his sentence in three ways: first, it validates the concerns of the respondent regarding any potential prejudice to impending criminal proceedings (given the assertions made about him as to his role/participation in alleged criminal offending); second, it supports the basis of his fears for his wellbeing and his family’s wellbeing from violence; and third, it undermines the applicant’s contention that the actual consequences of the contempt to the ACIC inquiry were of any significance. He submitted that the objective seriousness of the contempt falls toward the lower end of the spectrum for like offending and his powerful subjective features do not make him an appropriate vehicle for general deterrence. The respondent urged that a community-based order would do justice to the matter, or alternatively a short, fixed term of imprisonment may be imposed. As a starting point, it is plain the respondent’s contempt was deliberate. The respondent was informed of the consequences of his refusal to answer the questions and took that approach in a context where he received legal advice in relation to the examination. He was represented by a lawyer. He was aware of the obligations imposed on him by the Summons and the consequences of his actions. He refused to answer any questions from the outset, the first four of which related solely to him (and five of the seven questions). A refusal to answer questions undercuts the effectiveness of the statutory scheme which authorises those compulsory examinations: CRA20 at [41]. I accept the applicant’s submission that the failure to answer the questions impacted on the ACIC’s investigation. These reasons are necessarily written at a level of generality given the non-publication orders in place. The basis of the ongoing desire to question the respondent, and the context in which that occurs, is set out in the affidavit of Mr Halls. This was not undermined in cross-examination. For the same reasons, I do not propose to detail that evidence. In so far as the respondent suggests that the information sought by the questions could have been obtained by other means, Mr Halls did not accept the proposition. Relevantly, the evidence was that the questions asked were introductory and would have been followed by others. That can be readily accepted. The respondent’s submission, referred to above, about others having been arrested and the timing of the Summons relative to that, and the investigation has no foundation. It fails to grapple with the evidence of Mr Halls, and the nature of how an ongoing investigation may develop.