DTO21 v Australian Crime Commission

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] FCAFC 190
• Date: 30 November 2022

Federal Court of Australia

DTO21 v Australian Crime Commission [2022] FCAFC 190

Appeal from:	Australian Crime Commission v DTO21 (No 2) [2022] FCA 934
File number:	NSD 748 of 2022
Judgment of:	WIGNEY, BROMWICH and ABRAHAM JJ
Date of judgment:	30 November 2022
Catchwords:	CONTEMPT OF COURT – refusal by appellant to answer certain questions in Australian Crime Commission examination – refusal constituted contempt under s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) – appellant sentenced to 12 months’ imprisonment with liberty to apply – whether primary judge erred in finding there was continued prospect of appellant purging contempt – relevance of coercion in fixing sentences for contempt – whether primary judge considered suspended sentence – whether sentence was manifestly excessive – no error established – appeal dismissed
Legislation:	Australian Crime Commission Act 2002 (Cth) s 34A(a)(ii)
Cases cited:	Anderson v BYF19 [2019] FCA 1959 Anderson v DKH18 [2018] FCA 1571 Anderson v EVA20 [2022] FCA 1165 Anderson v GPY18 [2019] FCA 954 Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19 Australian Crime Commission v DTO21 (No 2) [2022] FCA 934 Australian Crime Commission v DTO21 [2022] FCA 288 Hannaford v HH (No 2) (2012) 203 FCR 501; [2012] FCA 560 He v Sun [2021] NSWCA 95; 104 NSWLR 518 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499 Lusty v CRA20 [2020] FCA 1737 R v Olbrich [1999] HCA 54; 199 CLR 270 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 Tracey v The Queen [2020] ACTCA 51 Veen v The Queen (No 2) (1988) 164 CLR 465 Von Doussa v Owens (No 3) (1982) 31 SASR 116 Wood v Galea (1995) 79 A Crim R 567 Wood v Galea (1996) 84 A Crim R 274 Wood v Galea (1997) 92 A Crim R 287 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 ProceedingsTBC
Number of paragraphs:	65
Date of hearing:	27 October 2022
Counsel for the Appellant:	Mr K Ginges with Mr J Donnelly
Solicitor for the Appellant:	William O’Brien & Ross Hudson Solicitors
Counsel for the Respondent:	Ms J Single SC with Mr M Varley
Solicitor for the Respondent:	Australian Government Solicitor

ORDERS

		NSD 748 of 2022
BETWEEN:	DTO21 Appellant
AND:	AUSTRALIAN CRIME COMMISSION Respondent

order made by:	WIGNEY, BROMWICH AND ABRAHAM JJ
DATE OF ORDER:	30 November 2022

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs as assessed or agreed.

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

REASONS FOR JUDGMENT

WIGNEY J:

1. I have had the benefit of reading, in draft, the reasons of Bromwich and Abraham JJ. I agree with their Honours that the appeal should be dismissed. I also generally agree with their Honours’ reasons, though I wish to add a few observations of my own, particularly in relation to ground 1 of the appeal and the relevance of coercion when it comes to fixing a penalty for a contempt of the sort under consideration in this matter.

2. I gratefully adopt Bromwich and Abraham JJ’s comprehensive summary of the relevant facts, the judgments of the primary judge, the grounds of appeal and the arguments advanced by the parties.

Ground 1 – the prospect of DTO21 purging his contempt and coercion

3. In relation to ground 1(a) of the appeal, I am not persuaded that the primary judge erred in finding that there was “a continued prospect of [DTO21] purging his contempt”. Nor do I accept DTO21’s contention that there was no evidentiary basis for that finding. It was in my view open to the primary judge to infer, from the evidence as a whole, that ongoing incarceration might cause DTO21’s obduracy or recalcitrance to wane to the point where he may capitulate and answer the questions which had been put to him during the examination.

4. It is important to emphasise that DTO21 did not say, in terms, that he would never purge his contempt by answering the questions. He said nothing whatsoever on that topic in his evidence in chief. In the course of cross-examination, DTO21 agreed that he had not “as yet” purged his contempt. He was then asked if he intended to purge his contempt. He did not directly answer that question. His response was: “my situation hasn’t changed”. That was far from an emphatic response and really said nothing about whether his “situation” might change in the future. It is true that the four and a half months that DTO21 had spent in prison in harsh conditions had not caused him to change his mind. That, however, did not compel the primary judge to find that further prison time would not, or was unlikely to, change DTO21’s mind.

5. That disposes of the first limb of ground 1 of the appeal. It also effectively disposes of ground 1 in its entirety, particularly given that the second limb of ground 1 appears to flow from or hinge on a finding that the primary judge erred in finding that there remained a prospect that DTO21 might purge his contempt in the future. I nevertheless wish to address an issue potentially raised by the second limb of ground 1.

6. The second limb of ground 1 is that the primary judge erred “by incorporating into the length and nature of the sentence imposed, a ‘significant consideration’ of ongoing coercion for [DTO21] to purge his contempt”. That contention raises the question of the extent to which coercion is or may be a relevant consideration in sentencing a contemnor in a case such as this.

7. I have some concerns about the primary judge’s approach to that question.

8. There are some indications in the primary judge’s reasons that, in determining what was an appropriate term of imprisonment to impose, his Honour took into account the purpose of coercing DTO21 to purge his contempt. In particular, in the final paragraph of his reasons, the primary judge said that “[i]n fixing that sentence [a fixed sentence of 12 months’ imprisonment], and reserving liberty to apply in the event that DTO21 chooses to purge his contempt, I have taken into account the coercion of the contemnor as an important consideration”: Australian Crime Commission v DTO21 (No 2) [2022] FCA 934 at [24]. His Honour referred, in that context, to [34] of his earlier judgment (Australian Crime Commission v DTO21 [2022] FCA 288 – DTO21 (No 1)) where he referred with apparent approval to the observation made by White J in Anderson v DKH18 [2018] FCA 1571 at [29] that “the coercion of the contemnor in a context like the present is a particularly important consideration”: see also DTO21 (No 2) at [24].

9. There is ample authority for the proposition that, where a person has been held in contempt for refusing to answer questions when required to do so, the contemnor may be committed to prison for an indefinite period in order to coerce him or her to answer those questions: see Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19 at [49] (White J); Wood v Galea (1995) 79 A...