Australian Crime Commission v DTO21 (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 12 August 2022
• Neutral Citation: [2022] FCA 934
• Date: 12 August 2022

Federal Court of Australia

Australian Crime Commission v DTO21 (No 2) [2022] FCA 934

File number(s):	NSD 1116 of 2021
Judgment of:	THAWLEY J
Date of judgment:	12 August 2022
Catchwords:	CONTEMPT OF COURT – sentencing – application to review continuance of indefinite sentence of imprisonment imposed for contempt of the Australian Criminal Intelligence Commission – where respondent has not purged contempt – fixed term of imprisonment imposed, with liberty to apply if contempt purged
Legislation:	Australian Crime Commission Act 2002 (Cth) s 34A
Cases cited:	Anderson v BYF19 [2019] FCA 1959 Anderson v GPY18 [2019] FCA 954 Australian Crime Commission v DTO21 [2022] FCA 288 Lusty v CRA20 [2020] FCA 1737
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	24
Date of hearing:	2 August 2022
Solicitor for the Applicant:	Mr C Hutchins of the Australian Government Solicitor
Counsel for the Respondent:	Mr D Carroll
Solicitor for the Respondent:	William O’Brien & Ross Hudson Solicitors

ORDERS

		NSD 1116 of 2021
BETWEEN:	AUSTRALIAN CRIME COMMISSION Applicant
AND:	DTO21 Respondent

order made by:	THAWLEY J
DATE OF ORDER:	12 AUGUST 2022

THE COURT ORDERS THAT:

1. Further to order 1 made on 28 March 2022, the respondent be imprisoned until 27 March 2023.

2. Reserve liberty to the parties to apply in the event that the respondent purges his contempt.

3. The respondent is to pay the applicant’s costs of and incidental to the application heard on 2 August 2022 to be assessed if not agreed.

4. Reserve liberty to apply generally.

5. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), to prevent prejudice to the proper administration of justice:

   1. The unredacted version of the reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of the Court.

   2. Within 7 days the parties provide to the Associate to Thawley J a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

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

REASONS FOR JUDGMENT

THAWLEY J:

1. On 28 March 2022, the Court declared that DTO21 was “guilty of the charge of contempt of the Australian Criminal Intelligence Commission in that, being a witness appearing at an examination before an examiner on [REDACTED], the respondent refused to answer seven questions which the examiner required him to answer, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth)”. On that day, the Court made various orders including that DTO21 be imprisoned until further order. Liberty was reserved to the parties to apply. The reasons for making the declaration and orders may be found in Australian Crime Commission v DTO21 [2022] FCA 288 (DTO21 No 1).

2. Pursuant to the liberty granted, DTO21 requested that the Court “finalise the proceedings by… imposing a [fixed] sentence”. The request to have the matter relisted was made by email. At the hearing, DTO21 relied upon two affidavits, one affirmed by him and the other affirmed by his solicitor. The basis of DTO21’s application, as put in oral submissions, was that:

1. it should be accepted on the basis of the events which have occurred to date that he will not purge his contempt and, therefore, that no useful purpose is served by continuing the indeterminate sentence;

2. the time which has been served is sufficient punishment for the contempt and, therefore, DTO21 should now be released; and

3. if the time served to the date of judgment on this application is not considered by the Court to be sufficient, a further fixed sentence should be imposed.

3. The applicant opposed bringing the indeterminate sentence to an end and further submitted that, if the indeterminate sentence was to be brought to an end, a substantial fixed term should be imposed. For the reasons which follow, I have reached the view that it is preferable for a fixed sentence to be imposed. These reasons assume familiarity with DTO21 No 1. I have adopted in these reasons the abbreviations used in those reasons.

4. I conclude that it is still necessary to obtain DTO21’s answers to questions:

• DTO21 has not been discharged from compliance with the relevant summons – see DTO21 No 1 at [12]; [25]; [81];

• the relevant investigation is continuing – see: DTO21 No 1 at [90]; and

• the applicant considers DTO21 is in possession of information which is relevant and material to the work of the ACIC and that it is necessary to obtain the contemnor’s answers to questions – see: DTO21 No 1 at [51].

5. As noted at [2(1)] above, DTO21 submitted that the Court should conclude that he will not purge his contempt and that, therefore, no useful purpose is served by continuing the indeterminate sentence imposed on 28 March 2022. I do not accept that there is no chance that DTO21 will purge his contempt and I consider that the coercive purpose of punishment remains a relevant consideration.

6. In refusing to answer the questions the subject of the contempt charges, DTO21 indicated that his refusal to answer was based on a fear of reprisals against him and his family. This was also said to be his position at the hearing of the contempt charges – see: DTO21 No 1 at [23], [61].

7. DTO21 gave evidence on this application and was cross-examined. In his affidavit he stated:

When I was brought into custody, I expressed that I did not want to be placed in protection, because I fear the impression may be gleaned that I am an informer and would therefore be targeted by other inmates.

8. DTO21 did not, in terms, give evidence that he would not purge his contempt for fear of reprisals against him or his family. DTO21 has never given evidence of any specific threat.

9. From the time of his incarceration on 28 March 2022 until [REDACTED], DTO21 was placed in [REDACTED] which, according to DTO21’s understanding, is a [REDACTED]. He stated in his affidavit that he was only allowed out of his cell on three occasions, once to see a physiotherapist, once to see a psychiatrist and once to speak with his solicitor.

10. On [REDACTED], DTO21 was transferred to the [REDACTED]. He was not generally allowed out of his cell, nor to have face-to-face contact with anyone.

11. In the week of [REDACTED], DTO21 was transferred to [REDACTED]. According to DTO21’s understanding, [REDACTED]. DTO21’s affidavit evidence included:

I was advised by Corrective Services officers that a placement in the [REDACTED].

12. DTO21’s affidavit evidence included the following relevant to his medical conditions and the difficulties in obtaining treatment:

[REDACTED].

As a result of not taking my medication for [REDACTED], my time in custody has been extremely difficult, particularly on my mental health. I did not have any social interaction and I could not access any natural sunlight whilst I was housed [REDACTED]. I estimate that I got around 15 minutes in total of conversation with prison officers on any given day. The rest of the day was spent watching TV or reading books, when I could get access to them. When at my lowest emotional points, I talked to myself to try and calm my anxiety and stop my thoughts racing.

At times, my anxiety has been so bad that it has affected the regularity of my heartbeat. When I first came to [REDACTED], the Doctor confirmed that I had an irregular heartbeat. The doctor ordered that an ECG be performed, and a blood test conducted. I did not have an irregular heartbeat prior to coming into custody.

I advised a nurse about my heartbeat and she advised me that if it happened again, then I should ‘knock up’ (press the alarm bell) in my cell and advise the nurse on duty. One evening [REDACTED] whilst in bed, my heart rate was beating exceedingly fast, and I felt tightness in my chest. I pressed the...