Anderson v GPY18

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] FCA 954
• Date: 21 June 2019

FEDERAL COURT OF AUSTRALIA

Anderson v GPY18 [2019] FCA 954

File numbers:	WAD 605 of 2018
Judges:	BANKS-SMITH J
Date of judgment:	21 June 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 take oath or make affirmation in examination - where respondent pleaded guilty - where respondent facing lengthy term of imprisonment for other offences - fixed term of imprisonment imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7, 7A, 7C, 28, 30, 34A, 34B 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 & 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 Corruption and Crime Commission v Allbeury, Silvestro, Chikonga, Smith [No 2] [2011] WASC 26; (2011) 205 A Crim R 386 Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 Hughes v Australian Competition & Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277 Murray v Chief Examiner [2018] VSCA 144 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969; (2001) 53 NSWLR 527 R v Abell [2007] QCA 448 R v Drever [2010] SASCFC 27 Registrar of the Court of Appeal v Gilby (Unreported, NSWCA, 20 August 1991) Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309 Wood v Staunton (No 5) (1996) 86 A Crim R 183
Date of hearing:	18 June 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Federal Crime and Related Proceedings
Category:	Catchwords
Number of paragraphs:	39
Counsel for the Applicant:	Mr AC Willinge
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr M Tudori
Solicitor for the Respondent:	Michael Tudori & Associates

Table of Corrections
25 June 2018	Counsel and solicitor details for applicant and respondent were inserted against the wrong party and have been amended to reflect the correct representation.

ORDERS

		WAD 605 of 2018
BETWEEN:	JEFFREY PHILIP ANDERSON, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Applicant
AND:	GPY18 Respondent

JUDGE:	BANKS-SMITH J
DATE OF ORDER:	21 JUNE 2019

THE COURT DECLARES THAT:

1. The respondent is guilty of the charge of contempt of the Australian Crime Commission (also known as the Australian Criminal Intelligence Commission) in that, being a witness appearing at an examination before an examiner on 11 September 2018 and having been required by the examiner to take the oath or make an affirmation in terms approved by the examiner, he refused to be sworn or affirmed.

THE COURT ORDERS THAT:

2. The respondent is committed to imprisonment for such contempt for a period of 6 months.

3. A warrant for the respondent's committal to prison for a period of 6 months issue.

4. The non‑publication orders made 30 January 2019 be varied so that the disclosure of the respondent's name to the proper officers of the prosecuting agencies responsible for prosecuting the existing charges against the respondent (being the charges referred to in paragraphs 10‑14 of the respondent's outline of submissions filed 17 May 2019) is permitted.

5. The non‑publication and suppression orders made 30 January 2019 otherwise remain in force.

6. The respondent pay the applicant's costs of the application to be assessed if not agreed.

7. 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

BANKS-SMITH J:

Background

1. The respondent was served with a summons to appear before an examiner appointed under the Australian Crime Commission Act 2002 (Cth) (Act) and to give evidence. The applicant is the examiner.

2. The respondent attended at the hearing before the examiner but refused to take an oath or affirmation. That resulted in the respondent being charged with contempt.

3. The statement of charges alleges that the respondent contravened s 34A(a)(i) of the Act in that having been required by the examiner to take the oath or make an affirmation in terms approved by the examiner, he refused to do so.

4. He pleaded guilty to that charge in this Court and it falls to me to sentence him.

5. At the time of the examination the applicant was in detention on remand with respect to a large number of charges (for both State and Commonwealth offences), and he remains on remand. Those charges include possession of a prohibited drug (methylamphetamine), dealing with proceeds of crime with a value exceeding $1,000,000 and possession of firearms or ammunition. Although he has since pleaded guilty to some of those charges he has not as yet been sentenced, with sentencing not expected until the latter half of 2019.

The Australian Criminal Intelligence Commission

6. The Australian Crime Commission is established by s 7 of the Act. Pursuant to s 7(1A) it may also be known by other names, including the Australian Criminal Intelligence Commission (ACIC). In this matter it operated as the ACIC. One of its functions is to investigate, when authorised by its Board, matters relating to 'federally relevant criminal activity': s 7A(c). By s 7C(1)(c) of the Act, one of the functions of the Board is to authorise the ACIC to undertake intelligence operations relating to such federally relevant criminal activity. By 7C(2), the Board may also determine that an investigation into matters relating to federally relevant criminal activity is a 'special operation'. Before doing so, it must consider whether ordinary police methods of investigation into the matters have been effective at understanding, disrupting or preventing the federally relevant criminal activity.

7. 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 entitled 'Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No 3)' (HRED 3 determination). The effect of the HRED 3 determination was to authorise the ACIC to undertake intelligence operations relating to high risk and emerging drugs, including serious drug offences contrary to Part 9.1 of the Criminal Code Act 1995 (Cth), importing psychoactive substances contrary to s 320.2 of the Criminal Code, offences contrary to Part 3‑1 or Part 3‑2 of the Therapeutic Goods Act 1989 (Cth) and many other connected offences including offences involving violence, money laundering and perverting the course of justice.

8. Since the HRED 3 determination there has been a further determination relating to high risk and emerging drugs, but the special operation under the HRED 3 determination is ongoing.

9. Section 28 of the Act empowers an appointed examiner to summon witnesses and take evidence in order to seek information in undertaking a special operation. In order to do so, the examiner is empowered to require the examinee to take an oath or make an...