Anderson v BYF19

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: ABRAHAM J
• Judgment Date: 22 November 2019
• Neutral Citation: [2019] FCA 1959
• Date: 22 November 2019

FEDERAL COURT OF AUSTRALIA

Anderson v BYF19 [2019] FCA 1959

File number:	NSD 745 of 2019
Judge:	ABRAHAM J
Date of judgment:	22 November 2019
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 respondent did not subsequently purge contempts despite opportunities to do so – fixed term of imprisonment imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 20, 21, 22, 28, 30, 34A, 34B Criminal Code 1995 (Cth) Federal Court of Australia Act 1976 (Cth) s 31 Federal Court Rules 2011 (Cth) Part 42
Cases cited:	Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425 Anderson v DKH18 [2018] FCA 1571 Anderson v XLVII [2015] FCA 19 Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24 Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26 DAB v R [2010] NSWCCA 275 Elomar v The Queen [2014] NSWCCA 303; (2014) 300 FLR 323 Hannaford 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 Qutami v R [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v Drever [2010] SASCFC 27 R v Hinchliffe [2013] NSWCCA 327 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 Sage v ZZ (No 2) [2015] FCA 450; (2015) 234 FCR 251 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Wood v Galea [1995] NSWSC 100; (1995) 79 A Crim R 567 Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 Von Doussa v Owens (No 3) (1982) 31 SASR 116
Date of hearing:	15 October 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Federal Crime and Related Proceedings
Category:	Catchwords
Number of paragraphs:	86
Solicitor for the Applicant:	Mr C Hutchins of Australian Government Solicitor
Counsel for the Respondent:	Avni Djemal
Solicitor for the Respondent:	Zahr Partners

ORDERS

		NSD 745 of 2019
BETWEEN:	MR JEFFREY PHILIP ANDERSON, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Applicant
AND:	BYF19 Respondent

JUDGE:	ABRAHAM J
DATE OF ORDER:	22 NOVEMBER 2019

THE COURT DECLARES THAT:

1. The respondent is guilty of the charge of contempt of the Australian Crime Intelligence Commission (formerly the Australian Crime Commission) in that, being a witness appearing at an examination before an examiner on 14 December 2018, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

1. The respondent is imprisoned for a period of 8 months, to be released after serving 4 months, 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 to date from 22 November 2019 to 21 March 2020, following which the balance of the sentence is suspended with the period of good behaviour for 2 years commencing on 22 March 2020 and expiring on 21 March 2022.

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 parties be at liberty to apply in the event that the respondent purges his contempt before the expiration of the period of 4 months imprisonment.

5. The applicant have liberty to apply in relation to the execution of the remainder of the sentence, if after being released on that condition, the respondent does not comply with it.

6. The orders previously made prohibiting the publication of the respondent’s name, and suppressing access to the court file are to continue.

7. The respondent is to pay the applicant’s costs of the application to be assessed if not agreed.

8. There be liberty to apply.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. The respondent was charged with, and pleaded guilty to, the offence of contempt of the Australian Criminal Intelligence Commission (ACIC) committed on 14 December 2018 by his refusal during a compulsory examination conducted pursuant to the Australian Crime Commission Act 2002 (Cth) (ACC Act) to answer six questions which he was required to answer.

2. The applicant seeks, inter alia, a declaration that the respondent is guilty of contempt of the ACIC contrary to s 34A(a)(ii) of the ACC Act, and orders for punishment of that contempt.

3. On 19 June 2019, the particulars of the contempt charges were read to the respondent in this Court and the respondent pleaded guilty to each of the six contempts particularised in the charge. Accordingly, it falls to me to sentence him.

4. For the reasons set out below, I am satisfied that a fixed sentence of imprisonment is appropriate in the present case and I impose a term of 8 months imprisonment to be released after serving 4 months, the remainder of the sentence to be suspended on the condition the respondent be of good behaviour for a period of 2 years.

Evidence

5. In support of the application the applicant relied on the following material:

1. originating application dated 9 May 2019;

2. statement of charge dated 9 May 2019;

3. affidavit of [REDACTED] sworn 6 May 2019;

4. affidavit of Shane Douglas Neilson sworn 12 July 2019;

5. supplementary affidavit of Shane Douglas Neilson sworn 8 October 2019;

6. affidavit of Cameron Hutchins sworn 8 October 2019;

7. outline of submissions dated 22 July 2019; and

8. outline of submissions in reply dated 8 October 2019.

6. The respondent relied on the following:

1. expert report of [REDACTED];

2. expert report of Megan Godbee (Forensic Psychologist) dated 25 September 2019;

3. witness statement of the respondent dated 26 September 2019;

4. an affidavit of [REDACTED] affirmed 27 September 2019;

5. an affidavit of [REDACTED] affirmed 27 September 2019; and

6. outline of submissions dated 26 September 2019.

7. The above material was admitted without objection. In addition, the parties provided a joint statement of facts. The applicant also provided what, in effect, was a court book with the relevant material, including comparable authorities for the purpose of sentencing and a table summarising the same decisions entitled “Aide [Memoire] re Comparative sentences”.

Statutory and regulatory background

8. 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 operations” relating to “federally relevant criminal activity”: s 7C(1)(c).

9. The Board of ACIC has issued a number of determinations about high risk and emerging drugs and has determined they are special operations. Relevantly, on 21 June 2017, the Board issued a determination pursuant to s 7C of the ACC Act entitled, “Australian Criminal Intelligence Commission Special Operation...