Sage v Ayi23

Case [2023] FCA 1336

FEDERAL COURT OF AUSTRALIA

Sage v AYI23 [2023] FCA 1336

File number(s): NSD 322 of 2023
Judgment of: ABRAHAM J
Date of judgment: 2 November 2023
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 examination – where respondent pleaded guilty – where contempt not subsequently purged – where summons no longer extant – fixed term of imprisonment imposed.
Legislation:

Australian Crime Commission Act 2002 (Cth) ss 7, 7C, 19A, 21A, 20-22, 34A(a)(ii), 34B, 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 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

Australian Crime Commission v DTO21 [2022] FCA 288

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

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

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

Lusty v CVA22 [2023] FCA 130

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

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

Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596

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

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

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: 41
Date of hearing: 19 October 2023
Counsel for the applicant Ms Curry
Solicitor for the applicant Australian Government Solicitor
Counsel for the respondent  Mr Grippi
 Solicitor for the respondent Krayem and Co Lawyers

ORDERS

NSD 322 of 2023
BETWEEN:

GEOFFREY ERNEST SAGE AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH)

Applicant
AND:

AYI23

Respondent

ORDER MADE BY:

ABRAHAM J

DATE OF ORDER:

2 NOVEMBER 2023

THE COURT DECLARES THAT:

1.The respondent is guilty of contempt of the Australian Criminal Intelligence Commission (ACIC) in that, on [REDACTED], when appearing as a witness at…

Continue reading Sage v Ayi23

Sign in free to access the full text

Details
AGLC
Sage v Ayi23 [2023] FCA 1336
Case
[2023] FCA 1336
Decision Date

CaseChat Overview and Summary

In the Federal Court, Sage initiated proceedings against Ayi23, seeking to address the respondent's refusal to answer questions during an examination conducted by the Australian Criminal Intelligence Commission (ACIC). The ACIC summoned Ayi23 to appear and provide evidence as part of a special operation related to high-risk and emerging drugs. Ayi23 pleaded guilty to the charge of contempt by failing to answer questions during the examination. The court had to determine an appropriate penalty for the contempt, considering the nature of the offence, the deliberateness of the respondent's actions, and the impact on the ACIC's investigation.

The court examined the statutory framework governing the ACIC's powers and the legal consequences of contempt. It noted that the ACIC relies on examinations to obtain critical information related to federal crime, and the failure to comply with a summons or answer questions during an examination constitutes contempt. The court also highlighted that the ACIC could seek court intervention to enforce compliance and that the court had the authority to impose penalties as if the contempt were of the Federal Court itself. The key issue was to determine an appropriate fixed-term imprisonment sentence, considering the deliberate nature of the contempt and its impact on the ACIC's investigation.

In its reasoning, the court noted that there was no prescribed maximum penalty for the offence of contempt in this context. It considered the range of penalties available, including imprisonment, fines, and sequestration of assets. Given that the special operation determination under which the summons was issued was no longer in effect, the court concluded that a fixed-term imprisonment was appropriate. The court found Ayi23's refusal to answer questions deliberate, despite ample opportunities to obtain legal advice. The court determined that the refusal significantly hindered the ACIC's investigation into a sophisticated drug syndicate, affecting the gathering of crucial information about the syndicate's operations and members. The court imposed a seven-month term of imprisonment, effective from 2 November 2023 to 1 June 2024, and ordered a warrant for Ayi23's committal to prison. Additionally, Ayi23 was required to pay the applicant's costs of the application, to be agreed upon or assessed.

Orders

Orders of the court

3. The respondent is sentenced to a term of imprisonment of 7 months, to commence on 2 November 2023 and end on 1 June 2024.

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

5. 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 read affidavits of the following persons:(a)the respondent’s mother, affirmed 18 October 2023; and(b)a paralegal employed by the respondent’s solicitor’s firm, sworn 18 October 2023.Statutory and regulatory background 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 relevant summons was issued to the respondent on 23 November 2022, which required him to attend an examination before the applicant on [REDACTED] (the Summons). The examination in this matter was for the purpose of a special ACIC operation, being the High Risk and Emerging Drugs 2020 Special ACIC Operation (Operation). The Operation was authorised by the Special Australian Criminal Intelligence Commission Operation Determination (High Risk and Emerging Drugs) 2020 (Determination), dated 28 July 2020. The Summons on its face, stated that it required the respondent to answer questions for the purposes of the Operation about matters relating to “high risk and emerging drugs” (as defined in the Determination), which included the importation and trafficking of border-controlled drugs (in particular cocaine); dealing with money or other property, especially large volumes of cash, that were the proceeds or instruments of such activities; the use of dedicated encrypted communication devices to facilitate such activities; connected activities involving the provision of electronic counter surveillance measures to organised crime groups or individuals; and the identities of other persons involved in such activities and the nature and extent of their involvement.

Evidence

Evidence Before The Court

For the reasons set out below, I impose a term of imprisonment of seven months. Evidence In support of the application the applicant read affidavits of the following persons:(a)a Senior Lawyer of the ACIC, affirmed 31 March 2023;(b)Darshana Sivakumaran, sworn 26 July 2023; and(c)Nicola Colagiuri, affirmed 26 July 2023. The respondent read affidavits of the following persons:(a)the respondent’s mother, affirmed 18 October 2023; and(b)a paralegal employed by the respondent’s solicitor’s firm, sworn 18 October 2023.Statutory and regulatory background 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 relevant summons was issued to the respondent on 23 November 2022, which required him to attend an examination before the applicant on [REDACTED] (the Summons).

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 As the Determination under which the Summons was issued is no longer extant, the parties agreed the penalty to be imposed ought to be a fixed term of imprisonment. As the Determination is not extant, coercion is no longer an element of any sentence. The respondent’s contempt was deliberate. The respondent was repeatedly 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 at the outset of the first hearing, but that lawyer subsequently withdrew from the hearing. The applicant was given ample opportunities to obtain further legal advice which he repeatedly declined. He was aware of the obligations imposed on him by the Summons and the consequences of his actions. I accept the applicant’s submission that the failure to answer the questions impacted on the ACIC’s investigation. It is unnecessary for present purposes to detail the questions asked, noting that these reasons are necessarily written at a level of generality given the non-publication orders in place. Suffice to say that the purpose of the examination, in the context of the Determination, was broader than acknowledged by the respondent in his submissions. The purpose of the examination was for the ACIC to obtain information in relation to criminal activities involving the distribution of cocaine and laundering of significant amounts of monies as a part of a known sophisticated drug supply syndicate, including further information regarding the communications services supporting the syndicate, including a particular encrypted messaging platform. The respondent’s failure to answer the questions as required hindered the ACIC at that time from obtaining answers in relation to a number of matters about which he is expected to have knowledge, including: the identities and roles of persons involved in the supply and trafficking of illicit drugs; methods of moving monies suspected to be proceeds of crime offshore; and methodologies employed by members of relevant criminal groups to avoid detection by law enforcement agencies. That is so regardless of what may have become known to the ACIC at any later stage.