Australian Crime Commission v DTO21

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] FCA 288
• Date: 28 March 2022

Federal Court of Australia

Australian Crime Commission v DTO21 [2022] FCA 288

File number(s):	NSD 1116 of 2021
Judgment of:	THAWLEY J
Date of judgment:	28 March 2022
Catchwords:	CONTEMPT OF COURT – sentencing – contempt of the Australian Criminal Intelligence Commission – 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 – indefinite term of imprisonment imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7A, 24A, 28, 30, 33, 34, 34B, 34C Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995 (Cth) s 173 Federal Court of Australia Act 1976 (Cth) ss 31, 37AF Federal Court Rules 2011 (Cth) rr 29.09, 42.15 Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth)
Cases cited:	Anderson v DKH18 [2018] FCA 1571 Anderson v EVA20 [2021] FCA 457 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 Corruption and Crime Commission v Allbeury (No 2) [2011] WASC 26, (2011) 205 A Crim R 386 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 Independent Commission Against Corruption v Cornwall (No 1) (1993) 116 ALR 97 Lusty v CRA20 [2020] FCA 1737 R v Drever [2010] SASCFC 27 R v Dial (unreported, District Court of South Australia, 30 April 2009) R v Giuseppe Falanga and Carmelo Falanga (unreported, District Court of South Australia, 6 March 2008) R v Smith (1987) 44 SASR 587 Royal Commissioner v Staunton (unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) Sage v ZZ (No 2) [2015] FCA 450 Selvaratnam v St George - A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 Von Doussa v Owens (No 3) (1982) 31 SASR 116 Wood v Galea (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:	92
Date of hearing:	25 March 2022
Counsel for the Applicant:	Ms S Maharaj QC
Solicitor for the Applicant:	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:	28 MARCH 2022

THE COURT DECLARES THAT:

1. The respondent is 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 17 June 2021, 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).

THE COURT ORDERS THAT:

1. The respondent be imprisoned until further order.

2. A warrant for the respondent’s committal to prison be issued and be provided to the Commissioner and Officers of the Australian Federal Police and Corrective Services NSW with a copy of these Orders.

3. If the respondent purges his contempt:

1. the respondent is to notify the Associate to Thawley J of that fact within 24 hours of the purging;

2. the parties have liberty to apply for an order modifying or discharging order 1.

4. Reserve liberty to apply generally.

5. The respondent pay the applicant’s costs of the application as agreed or assessed.

6. 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

(Revised from transcript)

THAWLEY J:

INTRODUCTION

1. The Australian Crime Commission (ACC) is established by s 7 of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). By operation of s 7(1A) of the ACC Act and s 8 of the Australian Crime Commission Regulations 2018 (Cth), the ACC is also known as the Australian Criminal Intelligence Commission (ACIC).

2. The ACIC’s functions are set out in s 7A of the ACC Act. One of its functions is to undertake special ACIC operations, including investigations into various forms of “serious and organised crime”. The ACIC discharges its functions in various ways, including by examination of persons by examiners. 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. Section 24A of the ACC Act empowers an examiner to conduct an examination for the purposes of a special ACC operation / investigation. The importance of examinations was emphasised in the Explanatory Memorandum to the Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth) as follows (at page 28):

Examinations are a key part of the ACC’s functions. They enable it to obtain information that would not otherwise be available, or which could only be obtained after long and complex investigations. Examination material plays an important role in assisting the ACC to develop an understanding of how serious and organised crime operates, to analyse this information with other relevant information and to disseminate it to Commonwealth, State and Territory partner agencies as part of an intelligence product.

3. 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. It is also an offence for persons at an examination before an examiner to give evidence that is to his or her knowledge false or misleading in a material particular: s 33.

4. A person appearing as a witness at an examination before an examiner is in contempt of the ACIC if he or she refuses or fails to answer a question which the person is required by the examiner to answer: s 34A(a)(ii).

5. If an examiner forms the opinion, during an examination before the examiner, that a person is in contempt, the examiner may apply to this Court to be dealt with in relation to the contempt: s 34B(1).

6. Before the application is made, the examiner must inform the person that the examiner proposes to make the application: s 34B(2). The application must be accompanied by a certificate which states the grounds for making the application and the evidence in support of the application: s 34B(3). A copy of the certificate must be given to the person before, or at the same time as, the...