FEDERAL COURT OF AUSTRALIA
Purcell v IDN24 [2025] FCA 215
File number(s): VID 745 of 2024 Judgment of: BENNETT J Date of judgment: 19 March 2025 Catchwords: CONTEMPT OF COURT – Contempt of the Australian Crime Commission punishable as contempt of Federal Court – failure or refusal to answer questions – whether a purported lack of recollection could amount to a failure or refusal to answer questions – whether lack of memory is inherently implausible – inferences – Applicant failed to discharge its burden – application dismissed Legislation: Australian Crime Commission Act2002 (Cth)
Australian Crime Commission Regulations 2018 (Cth)
Criminal Code (Cth)
Evidence Act1995 (Cth)
Police Integrity Commission Act 1996 (NSW)
Cases cited: Anderson v DKH18 [2018] FCA 1571
Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19
Barca v The Queen (1975) 133 CLR 82
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Clarkson v Mandarin Club Ltd (1998) 90 FCR 354
Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696
Coward v Stapleton (1953) 90 CLR 573
Hammond v Aboudi (2005) 31 WAR 533
Keeley v Brooking (1979) 143 CLR 162
Peacock v The King (1911) 13 CLR 619
Powell v Battle [1963] WAR 32
Saxe v Kellett [1970] VR 600
Scott v Witness C (2009) 193 A Crim R 430; [2009] QSC 35
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shepherd v R (1990) 170 CLR 573
Division: General Division Registry: Victoria National Practice Area: Federal Crime and Related Proceedings Number of paragraphs: 162 Date of last submission/s: 14 February 2025 Date of hearing: 11 February 2025 Counsel for the Applicant: Sashi Maharaj KC with Rowan Minson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Conor O’Bryan Solicitor for the Respondent: Rizkallah Partners ORDERS
VID 745 of 2024 BETWEEN: ANDREW PURCELL, AN EXAMINER APPOINTED UNDER S46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)
Applicant
AND: IDN24
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
19 MARCH 2025
THE COURT ORDERS THAT:
1.The Application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BENNETT J
Mr Purcell (the Applicant) was an examiner appointed under s 46B of the Australian Crime Commission Act2002 (Cth) (the ACC Act). IDN24 is the pseudonym given to the Respondent. The Respondent appeared before the examiner as a witness pursuant to a summons issued under s 28 of the ACC Act.
By originating application filed on 31 July 2024, the Applicant seeks a declaration that the Respondent is guilty of contempt for failing or refusing to answer questions. The Applicant has proffered six charges arising from a witness examination that was convened under the ACC Act in [REDACTED].
SUMMARY OF CONCLUSIONS
The Applicant proffered six charges. Each charge concerns questions about ‘ANOM devices’ or an ‘ANOM platform’.…
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CaseChat Overview and Summary
The case of Purcell v IDN24 involves an application by the Applicant to the Federal Court seeking a declaration of contempt against the Respondent for failing or refusing to answer questions posed during examinations under the Australian Crime Commission (ACC) Act. The Applicant argues that the Respondent's claims of having no recollection of the use of ANOM devices or platforms are inherently implausible and thus false, amounting to contempt. The examinations in question were part of a special operation connected to serious and organised crime.
The legal issues before the court included whether the Respondent's failure or refusal to answer questions amounted to contempt, and if so, whether the Applicant had proven the inherent implausibility of the Respondent's claims of no recollection. The court also considered whether the Applicant had established that the Respondent's responses were false and given to 'fob off' the enquiry, which would constitute contempt. Furthermore, the court needed to determine if there was sufficient evidence to make the required inferences about the Respondent's recollection and the plausibility of his claims.
The court found that the Applicant had not discharged its burden of proving the case beyond reasonable doubt. The Applicant's argument that it was inherently implausible for the Respondent to have no recollection of the use of ANOM devices or platforms was not substantiated by sufficient evidence. The court highlighted the lack of clarity regarding what the term 'ANOM device' or 'ANOM platform' meant to the Respondent and the absence of evidence about the nature, availability, or memorability of these devices. Consequently, the court was unable to conclude that the Respondent's evidence of no recollection was false. The court also noted that the responses provided by the Respondent, when read together, did offer some form of answer to the questions beyond merely stating a lack of recollection. As a result, the application for a declaration of contempt was dismissed.
ORDERS:
1. The Application be dismissed.
The legal issues before the court included whether the Respondent's failure or refusal to answer questions amounted to contempt, and if so, whether the Applicant had proven the inherent implausibility of the Respondent's claims of no recollection. The court also considered whether the Applicant had established that the Respondent's responses were false and given to 'fob off' the enquiry, which would constitute contempt. Furthermore, the court needed to determine if there was sufficient evidence to make the required inferences about the Respondent's recollection and the plausibility of his claims.
The court found that the Applicant had not discharged its burden of proving the case beyond reasonable doubt. The Applicant's argument that it was inherently implausible for the Respondent to have no recollection of the use of ANOM devices or platforms was not substantiated by sufficient evidence. The court highlighted the lack of clarity regarding what the term 'ANOM device' or 'ANOM platform' meant to the Respondent and the absence of evidence about the nature, availability, or memorability of these devices. Consequently, the court was unable to conclude that the Respondent's evidence of no recollection was false. The court also noted that the responses provided by the Respondent, when read together, did offer some form of answer to the questions beyond merely stating a lack of recollection. As a result, the application for a declaration of contempt was dismissed.
ORDERS:
1. The Application be dismissed.
Orders
Orders of the court
1. The Application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is in the context of these principles that I carry out the analysis set out below. BACKGROUND FACTS The Applicant filed two affidavits in support of its application, being affidavits of [REDACTED] affirmed on 23 July 2024 (the First [REDACTED] Affidavit) and 5 November 2024 (the Second [REDACTED] Affidavit). The Respondent filed no evidence. The First [REDACTED] Affidavit annexed a certificate within the meaning of s 34B(3) of the ACC Act (the Certificate). Section 34C(3) provides that a certificate which complies with subsection 34B(3) of the ACC Act is prima facie evidence of the matters specified in it. In the absence of contradicting evidence, that prima facie evidence becomes conclusive of those matters (Powell v Battle [1963] WAR 32 at 33 (Hale J); Saxe v Kellett [1970] VR 600 at 602 (Anderson J); Aboudi at [25] (McLure JA, with whom Wheeler JA and LeMiere AJA agreed)). The First [REDACTED] Affidavit exhibits the transcripts of the examinations that took place on both [REDACTED] and [REDACTED] (the First Examination and the Second Examination respectively; together, the Examinations). Each transcript was entered into evidence on the basis of a direction under s 136 of the Evidence Act1995 (Cth) that their use is limited to the fact that the questions were asked, but not to the underlying truth of any proposition in question. The Examinations IDN24 was served with a summons issued under s 28 of the ACC Act on [REDACTED]. The purpose of the summons was to require IDN24 to answer questions for the purposes of a special operation connected with serious and organised crime. IDN24 was represented by counsel at the First Examination, and by a solicitor at the Second Examination. With the agreement of both parties, I have watched the recordings of the Examinations. I have observed the demeanour and tone of the Respondent and taken it into account in my assessment of each charge. Until the hearing of this matter, the Applicant appeared to urge the Court to proceed on the basis that it could take judicial notice of the fact that ANOM devices are mobile phones on which ‘ANOM’, an encrypted messaging application, is installed and that ANOM was an encrypted messaging application deployed during a covert operation conducted by the Australian Federal Police known as ‘Operation Ironside’. Reliance on the principles of judicial notice to establish these facts was disavowed on the day of the hearing. No advance notice of that change was provided to either the Respondent or the Court. The Applicant sought to rely instead on the way that ANOM devices were described to the Respondent in the First Examination. The Applicant asserted the Respondent was told by Counsel Assisting that:(1)ANOM was a ‘dedicated encrypted device platform’; and(2)ANOM devices are ‘a specific phone that was a dedicated encrypted device that doesn't receive other applications’. This is then said to provide the underpinning to all subsequent questions about ANOM devices or platforms in the Examinations. Whether this is a proper description of what was put to IDN24 during the First Examination, and if so, what can be inferred about his understanding of ANOM devices in relation to the charged responses, were contested issues which I address below (along with other factors relied upon to submit that the Respondent’s responses were inherently implausible). Ultimately, the Applicant submits that these two characteristics were part of the reason that it is inherently implausible that the Respondent would not recall the answers to questions asked about ANOM devices, irrespective of what those answers were. That is because a person would recall the answers to the questions about a dedicated encrypted device platform, or a specific phone that was a dedicated encrypted device that doesn’t receive any other applications. Any answer by which a person purported to not recall one way or another is said to be so inherently implausible as to satisfy me that the answer is both false, and given to ‘fob off’ enquiry.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
By originating application filed on 31 July 2024, the Applicant seeks a declaration that the Respondent is guilty of contempt for failing or refusing to answer questions. The Applicant has proffered six charges arising from a witness examination that was convened under the ACC Act in [REDACTED]. SUMMARY OF CONCLUSIONS The Applicant proffered six charges. Each charge concerns questions about ‘ANOM devices’ or an ‘ANOM platform’. Broadly, they concern whether the Respondent recalled obtaining or using an ANOM device or the ANOM platform. It is said that in response to each question, the Respondent purported to have no recollection by answering in variations of ‘I do not recall.’ The Applicant asks me to infer that on each occasion, the Respondent did have a recollection, and that he provided a false response as a means of ‘fobbing off’ enquiry. This is said to constitute a failure or refusal to answer the question. I am not asked to determine what the Respondent’s recollection was: simply that the Respondent must have had a memory one way or the other about his use of ANOM devices or platforms. The Applicant asked me to reach that conclusion because it is inherently implausible that a person in the Respondent’s position would not recall his use (or non-use) of an ANOM device or platform one way or the other. The Applicant submits that I should make the inferences for which they contend because when Counsel Assisting referred to an ANOM device she should be taken to have been referring to a ‘dedicated encrypted device’ and ‘a specific phone that was a dedicated encrypted device that doesn’t receive other applications’. It is said to be inherently implausible that a person could not recall whether or not they had or used a device with these features. I have set out my analysis of this submission below. For the purposes of this summary, it is sufficient to say that I do not accept that on each of the charged occasions the Respondent should be taken to have been asked about ‘a dedicated encrypted device’ and ‘a specific phone that was a dedicated encrypted device that doesn’t receive other applications’. He was being asked about an ‘ANOM device’ or ‘ANOM platform’. There is a lack of clarity over what the Respondent understood that term to mean. There are very few indicators from which I can infer whether or not it is likely that a person with a normally functioning memory would necessarily recall the answers to the relevant questions. There is no evidence about how the ANOM devices or platforms worked, or how memorable they were to use. There is no evidence about when they were available, or how a person went about obtaining them. No evidence of this kind was put to the Respondent during the examinations. The Applicant was required to prove its case beyond reasonable doubt. The case is circumstantial. A circumstantial case can certainly establish guilt beyond reasonable doubt. At the core of this case is whether it is so inherently implausible that a person does not recall the answers to the questions asked that I can be satisfied that his evidence – that he does not recall – was false and given to ‘fob off’ enquiry. In the absence of evidence about matters that might make the impugned actions or conduct memorable, I am unable to conclude that the responses given were false. In some instances, I have concluded that in any event, when read together, the responses did provide an answer to the question other than simply professing to have no recollection one way or another. LEGISLATIVE FRAMEWORK The ACC Act
Ratio Decidendi
Legal Principle Established
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