Purcell (Examiner) v Laz24

Case [2025] FCA 413

FEDERAL COURT OF AUSTRALIA

Purcell (Examiner) v LAZ24 [2025] FCA 413

File number(s): NSD 1773 of 2024
Judgment of: HILL J
Date of judgment: 29 April 2025
Catchwords: CONTEMPT OF COURT – sentencing – contempt of the Australian Criminal Intelligence Commission – contempt punishable as contempt of Federal Court – Respondent in contempt by refusing to answer questions in an examination – where Respondent pleaded guilty – where purging of Respondent’s contempt remains a live possibility – fixed term of imprisonment imposed
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 4(1), 7A(b), 7C, 24A(1), 25A(9), 28, 30(2)(b), 34A(a)(ii), 34B, 46B

Crimes Act 1914 (Cth) ss 16A(2), 17A

Criminal Code Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) s 31

Judiciary Act 1903 (Cth) s 68

Federal Court Rules 2011 (Cth) Pt 42

Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1)
Cases cited:

Anderson v BYF19 [2019] FCA 1959

Australian Crime Commission v DTO21 [2022] FCA 288

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v de la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

DTO21 v Australian Crime Commission [2022] FCAFC 190; (2022) 295 FCR 194

Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH [2010] FCA 1214

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

Isaac v The King [2024] NSWCCA 2; (2024) 384 FLR 431

Lloyd v The Queen [2022] NSWCCA 18

Lusty (Examiner) v CRA20 [2020] FCA 1737

Lusty (Examiner) v DER22 [2023] FCA 255

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

Lusty (Examiner) v ITT24 [2025] FCA 141

Lusty v CVA22 [2023] FCA 130

R v Ngoc Anh aka John Nguyen [2004] NSWCCA 332

R v Pham [2015] HCA 39; (2015) 256 CLR 550

Sage v AYI23 [2023] FCA 1336

Sage v CFS22 [2022] FCA 1023

Wany v Director of Public Prosecutions (NSW) [2020] NSWCA 318; (2020) 103 NSWLR 620

Wood v Galea (1997) 92 A Crim R 287

Wood v Staunton (No 5) [2015] NSWSC; (1996) 86 A Crim R 183
Division: General Division
Registry: New South Wales
National Practice Area: Federal Crime and Related Proceedings
Number of paragraphs: 71
Date of hearing: [REDACTED]
Counsel for the Applicant: Mr Williams
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the Respondent: Ms Doherty
Solicitor for the Respondent: Miers Legal

ORDERS

NSD 1773 of 2024
BETWEEN:

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

Applicant
AND:

LAZ24

Respondent

ORDER MADE BY:

HILL J

DATE OF ORDER:

29 APRIL 2025

THE COURT DECLARES THAT:

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

THE COURT ORDERS THAT:

1.The Respondent is sentenced…

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AGLC
Purcell (Examiner) v Laz24 [2025] FCA 413
Case
[2025] FCA 413
Decision Date

CaseChat Overview and Summary

In the case of Purcell (Examiner) v Laz24, the Federal Court of Australia dealt with a matter concerning contempt of the Australian Criminal Intelligence Commission (ACIC). The applicant, acting as the examiner, sought to hold the respondent, LAZ24, in contempt for refusing to answer questions during an examination conducted under a special ACC operation. The primary legal issues revolved around whether LAZ24's refusal to answer questions constituted contempt of the ACIC and, if so, the appropriate punishment for such contempt.

The court found that LAZ24's refusal to answer questions during the examination constituted contempt of the ACIC, as he failed to comply with a requirement imposed by the examiner. The court noted that LAZ24 had pleaded guilty to the contempt, and while the possibility of purging the contempt remained, it was not considered at that stage. The court imposed a fixed term of imprisonment as punishment for the contempt. The sentencing decision took into account the nature and seriousness of the contempt, the need to uphold the authority of the ACIC, and the public interest in maintaining the integrity of the special ACC operation.

The court issued several orders, including a 9-month imprisonment term for LAZ24, with the possibility of applying for the contempt to be purged before the expiration of the 2022 Determination. The court also ordered that certain parts of the reasons for judgment remain confidential and directed the parties to submit a redacted version for potential publication. Additionally, the court allowed LAZ24’s family members present in the courtroom to attend the hearing on the specified date.

Orders

Orders of the court

1. The Respondent is sentenced to a term of imprisonment of 9 months, to commence on [REDACTED] and end on [REDACTED].

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

3. There be liberty to apply, in the event that the Respondent purges his contempt before 12 December 2025.

4. The Respondent is to pay the Applicant’s costs of the application to be 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) These unredacted 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 seven days the parties provide to the Associate to Hill J a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

6. Order 5 of the orders of Justice Thawley made on 18 December 2024 be varied to allow the respondent’s family who are present in the courtroom to attend the hearing on [REDACTED].

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

Note: On [REDACTED], Order 4 was amended to substitute “costs” with “costs of the application” and Order 6 was amended to substitute “to attend the hearing” with [REDACTED] pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth).

Background

Background to the litigation

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 (ACC Act s 34B(5)). This Court’s power to punish for contempt is conferred by s 31 of the Federal Court of Australia Act 1976 (Cth), by reference to the powers and authority of the High Court to deal with contempts of that Court. The procedure for punishment of contempts of this Court is set out in Pt 42 of the Federal Court Rules 2011 (Cth).FACTUAL BACKGROUND Summons ([REDACTED] 2023): On [REDACTED] 2023, the Applicant issued a summons to LAZ24 under s 28 to appear before an examiner to give evidence for the purposes of the special ACC operation authorised by the 2022 Determination. The summons stated that LAZ24 would be questioned about: dealing with money and other property that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs; the use of encrypted communication devices and messaging applications to facilitate such activities; and the identities of other persons and entities (in Australia and overseas) involved in such activities and the nature and extent of their involvement. First examination ([REDACTED] 2024): On [REDACTED] 2024, LAZ24 attended an examination at the ACIC, beginning at 11.19 am. He was represented by a lawyer. The examiner stated that the examination would be conducted in private, and that the evidence given by LAZ24 would be treated as confidential. The examiner stated that he had summonsed LAZ24 because the examiner believed that LAZ24 could provide information that was relevant to a special operation being undertaken by the ACIC, especially about the activities of other people. LAZ24 raised concerns about answering questions, stating that he feared for his and his family’s safety. The examiner briefly adjourned the examination to enable LAZ24 to take legal advice. The examination resumed for a period, but it became apparent that the examination could not be concluded on that day, in part because LAZ24’s lawyer needed to be excused. The examiner stated that he would bring LAZ24 back at a later time, and stated that it was important that he talk to his lawyer in the meantime. The examiner made a confidentiality direction under s 25A(9) of the ACC Act restricting the persons to whom examination material could be disclosed and the purposes for which it could be used. The examination was adjourned at 1.19 pm, part heard. Second examination ([REDACTED] 2024): On [REDACTED] 2024, LAZ24 attended a second examination at the ACIC. He was represented by the same lawyer. At the beginning of the examination, his lawyer applied for the proceedings to be adjourned, because LAZ24 stated that he was not “feeling mentally right”. The examiner refused that application, noting that there was no evidence before the examiner of any upcoming appointments LAZ24 had with treating doctors, and that the application had been made without notice to the counsel assisting the examiner.

Evidence

Evidence Before The Court

Evidence: The Applicant relies on the following evidence:·Affidavit of [REDACTED] affirmed on 28 November 2024;·Affidavit of Katy Eliza Milne affirmed on 4 March 2025;·Confidential affidavit of Jason Leigh Halls sworn on 5 March 2025; LAZ24 relies on a psychiatric report of Dr Olav Nielssen dated 9 April 2025, together with other documents tendered at the hearing.STATUTORY SCHEME Special ACC operation: The ACIC’s functions include undertaking special ACC operations (ACC Act s 7A(b)). A “special ACC operation” is defined in s 4(1) to mean an intelligence operation that the ACC Board has authorised to occur under s 7C(2). Serious Financial Crime Determination: The examination in this matter was for the purposes of a special ACC operation being undertaken by the ACIC, under the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (2022 Determination).·The 2022 Determination authorises an intelligence operation to occur relating to the specified financial offences that may have been, may be being, or may in future be, committed. The primary purpose of the operation is to collect, correlate and analyse criminal information and intelligence about these offences. The “specified financial offences” include offences against the Criminal Code (as defined in the Criminal Code Act 1995 (Cth)) relating to fraudulent conduct, money laundering, and financial information offences, and these offences must (subject to two exceptions) be punishable by imprisonment for three years or more.·The 2022 Determination expires at the end of 3 years after it is made (ACC Act s 7C(4G)(b)); that is, on 12 December 2025. Examiner’s powers: An examiner appointed under Div 3 of Pt 2 of the ACC Act may conduct an examination for the purposes of a special ACC operation (ACC Act s 24A(1)). An examiner may summon a person to appear before the examiner to give evidence and produce such documents or other things referred to in the summons (s 28). It is an offence for persons summonsed to appear as witnesses at an examination (among other things) to refuse or fail to answer a question that they are required by the examiner to answer (s 30(2)(b)). Contempt of the ACIC: Persons appearing as witnesses 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 an examiner (ACC Act s 34A(a)(ii)). 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 (ACC Act s 34B(5)). This Court’s power to punish for contempt is conferred by s 31 of the Federal Court of Australia Act 1976 (Cth), by reference to the powers and authority of the High Court to deal with contempts of that Court. The procedure for punishment of contempts of this Court is set out in Pt 42 of the Federal Court Rules 2011 (Cth).FACTUAL BACKGROUND

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Special ACC operation: The ACIC’s functions include undertaking special ACC operations (ACC Act s 7A(b)). A “special ACC operation” is defined in s 4(1) to mean an intelligence operation that the ACC Board has authorised to occur under s 7C(2). Serious Financial Crime Determination: The examination in this matter was for the purposes of a special ACC operation being undertaken by the ACIC, under the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (2022 Determination).·The 2022 Determination authorises an intelligence operation to occur relating to the specified financial offences that may have been, may be being, or may in future be, committed. The primary purpose of the operation is to collect, correlate and analyse criminal information and intelligence about these offences. The “specified financial offences” include offences against the Criminal Code (as defined in the Criminal Code Act 1995 (Cth)) relating to fraudulent conduct, money laundering, and financial information offences, and these offences must (subject to two exceptions) be punishable by imprisonment for three years or more.·The 2022 Determination expires at the end of 3 years after it is made (ACC Act s 7C(4G)(b)); that is, on 12 December 2025. Examiner’s powers: An examiner appointed under Div 3 of Pt 2 of the ACC Act may conduct an examination for the purposes of a special ACC operation (ACC Act s 24A(1)). An examiner may summon a person to appear before the examiner to give evidence and produce such documents or other things referred to in the summons (s 28). It is an offence for persons summonsed to appear as witnesses at an examination (among other things) to refuse or fail to answer a question that they are required by the examiner to answer (s 30(2)(b)). Contempt of the ACIC: Persons appearing as witnesses 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 an examiner (ACC Act s 34A(a)(ii)). 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 (ACC Act s 34B(5)). This Court’s power to punish for contempt is conferred by s 31 of the Federal Court of Australia Act 1976 (Cth), by reference to the powers and authority of the High Court to deal with contempts of that Court. The procedure for punishment of contempts of this Court is set out in Pt 42 of the Federal Court Rules 2011 (Cth).FACTUAL BACKGROUND Summons ([REDACTED] 2023): On [REDACTED] 2023, the Applicant issued a summons to LAZ24 under s 28 to appear before an examiner to give evidence for the purposes of the special ACC operation authorised by the 2022 Determination. The summons stated that LAZ24 would be questioned about: dealing with money and other property that is proceeds or instruments of crime, especially of importations into Australia and trafficking in Australia of border-controlled drugs; the use of encrypted communication devices and messaging applications to facilitate such activities; and the identities of other persons and entities (in Australia and overseas) involved in such activities and the nature and extent of their involvement.