Anderson v EVA20

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 06 May 2021
• Neutral Citation: [2021] FCA 457
• Date: 06 May 2021

Federal Court of Australia

Anderson v EVA20 [2021] FCA 457

File number:	SAD 167 of 2020
Judgment of:	BESANKO J
Date of judgment:	6 May 2021
Date of publication of reasons:	4 June 2021
Catchwords:	CONTEMPT OF COURT — contempt of the Australian Crime Commission punishable as contempt of the Federal Court — where respondent summonsed to appear before an examiner of the Australian Crime Commission and refused to answer questions — where respondent pleaded guilty to six charges of contempt of the Australian Crime Commission pursuant to s 34A of Australian Crime Commission Act 2002 (Cth) — sentence of imprisonment until further order imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 4, 7C, 24A, 25A, 28, 30, 34B, 34C, 46B Australian Crime Commission Regulations 2018 (Cth) s 8 Sentencing Act 2017 (SA) s 93
Cases cited:	Anderson v BYF19 [2019] FCA 1959 Anderson v DKH18 [2018] FCA 1571 Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 Kimber v The Owners Strata Plan No. 48216 (No 2) [2018] FCAFC 58 Lusty v CRA20 [2020] FCA 1737 Von Doussa v Owens (No 3) (1982) 31 SASR 116
Division:	General Division
Registry:	South Australia
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	46
Date of hearing:	28 April 2021
Counsel for the Applicant:	Mr P d’Assumpcao
Solicitor for the Applicant:	Australian Criminal Intelligence Commission
Counsel for the Respondent:	Mr A Gaite
Solicitor for the Respondent:	Vadasz Lawyers

ORDERS

		SAD 167 of 2020
BETWEEN:	JEFFREY PHILIP ANDERSON Applicant
AND:	EVA20 Respondent

order made by:	BESANKO J
DATE OF ORDER:	6 May 2021

THE COURT DECLARES THAT:

1. The Respondent is guilty of contempt of the Australian Criminal Intelligence Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness appearing at an examination before an examiner on 10 September 2020, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

2. The Respondent be imprisoned until further order.

3. A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.

4. A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.

5. Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:

   1. the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of the Respondent to prison under the warrant;

   2. the Manager of the Yatala Labour Prison;

   3. the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that the Respondent be held; and

   4. such other officers employed by, or otherwise providing services to, the Department of Correctional Services that are necessary to give effect to the warrant.

6. In furtherance of order 5 above, and noting that the Respondent is currently on remand in custody at the Yatala Labour Prison in respect of offences before the District Court of South Australia, order 5 of the orders made on 26 November 2020 be varied, only to the extent that it is necessary to publish the Respondent’s name to:

   1. any judicial officer of the State of South Australia considering the Respondent’s sentence for any criminal offending, of which he may be found, or otherwise plead, guilty, during the period of effect of order 2 of these orders;

   2. such court staff, or any other person, as any judicial officer deems necessary to give effect to order 6(a) above; and

   3. any legal representative representing a party to any sentencing proceeding contemplated by order 6(a) above.

7. The Respondent pay the Applicant’s costs of, and incidental to, the application on an indemnity basis.

8. Liberty to apply on 24 hours’ notice.

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

REASONS FOR JUDGMENT

BESANKO J:

1. The applicant in this proceeding is an examiner appointed under s 46B(1) of the Australian Crime Commission Act 2002 (Cth) (the Act). The respondent is a person who received a summons to appear before the examiner at an examination. In the course of the examination, the respondent refused to answer six questions he was required to answer by the examiner.

2. On 5 February 2021, the respondent pleaded guilty to six charges of acting in contempt of the Australian Criminal Intelligence Commission within s 34A of the Act. The Australian Criminal Intelligence Commission is the name and the ACIC is the acronym by which the Australian Crime Commission may also be known by reason of s 7(1A) of the Act and s 8 of the Australian Crime Commission Regulations 2018 (Cth). The respondent must now be sentenced for the six acts of contempt.

3. The orders sought by the applicant are as follows:

THE COURT DECLARES THAT:

1. The Respondent is guilty of contempt of the Australian Criminal Intelligence Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness appearing at an examination before an examiner on 10 September 2020, he refused to answer six questions which the examiner required him to answer.

THE COURT ORDERS THAT:

2. The Respondent be imprisoned until further order.

3. A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.

4. A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.

5. Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:

(a) the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of Respondent to prison under the warrant;

(b) the Manager of the Yatala Labour Prison;

(c) the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that Respondent be held; and

(d) such other officers employed by, or otherwise providing services to, the Department of Correctional Services that are necessary to give effect to the warrant.

6. In furtherance of order 5 above, and noting that the Respondent is currently on remand in custody at the Yatala Labour Prison in respect of offences before the District Court of South Australia, order 5 of the orders made on 26 November 2020 be varied, only to the extent that it is necessary to publish the Respondent’s name to:

(a) any judicial officer of the State of South Australia considering the Respondent’s sentence for any criminal offending, of which he may be found, or otherwise plead, guilty, during the period of effect of order 2 of these orders;

(b) such court staff, or any other person, as any judicial officer deems necessary to give effect to order 6(a) above; and

(c) any legal representative representing a party to any sentencing proceeding contemplated by order 6(a) above.

7. The Respondent pay the Applicant’s costs of, and incidental to, the application on an indemnity basis.

8. Liberty to apply on 24 hours’ notice.

4. The aspects of the statutory scheme in the Act which are relevant to the sentencing of the respondent are as follows.

5. Section 34A(a)(ii) of the Act is as follows:

A person is in contempt of the ACC if he or she:

(a) when appearing as a witness at an examination before an examiner:

(i) …

(ii)...