Lusty v CRA20

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 03 December 2020
• Neutral Citation: [2020] FCA 1737
• Date: 03 December 2020

Federal Court of Australia

Lusty v CRA20 [2020] FCA 1737

File number:	NSD 653 of 2020
Judgment of:	ABRAHAM J
Date of judgment:	3 December 2020
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 answer questions in examination – where respondent pleaded guilty – where respondent did not subsequently purge contempts despite opportunities to do so – where summons no longer extant - fixed term of imprisonment imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7, 7C, 20, 21, 22, 28, 30, 34A, 34B, 46B Australian Criminal Intelligence Commission Special Operation Authorisation and Determination (High Risk and Emerging Drugs No. 4) 2018 Criminal Code (Cth) Part 9.1, Division 400 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 BYF19 [2019] FCA 1959 Anderson v DKH18 [2018] FCA 1571 Anderson v DKH18 (No 2) [2019] FCA 1352 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; (2002) 121 FCR 24 Australian Competition and Consumer Commission v Jutsen (No 6) [2012] FCA 809 Corruption and Crime Commission v Allbeury et al (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 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494 R v Drever [2010] SASCFC 27 R v Smith (1987) 44 SASR 587 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Vaysman v Deckers Outdoor Corporation Inc [2011] FCAFC 17; (2011) 276 ALR 596 Von Doussa v Owens (No 3) (1982) 31 SASR 116 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Wood v Galea [1995] NSWSC 100; (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:	62
Date of last submissions:	23 November 2020
Date of hearing:	9 November 2020
Solicitor for the Applicant:	Mr C Hutchins of Australian Government Solicitor
Counsel for the Respondent:	Mr D McMahon
Solicitor for the Respondent:	Murphy’s Lawyers Inc

ORDERS

		NSD 653 of 2020
BETWEEN:	DAVID LUSTY, AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Applicant
AND:	CRA20 Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	3 december 2020

THE COURT DECLARES THAT:

1. The respondent is guilty of the charge of contempt of the Australian Criminal Intelligence Commission (formerly the Australian Crime Commission) in that, being a witness appearing at an examination before an examiner on 31 January 2020, he refused to answer fourteen questions which the examiner required him to answer.

THE COURT ORDERS THAT:

1. The respondent is to be imprisoned for a period of 8 months.

2. The custodial period of 8 months imprisonment is to date from 3 December 2020 to 2 August 2021.

3. A warrant for the respondent’s committal to prison be issued and with a copy of these Orders, be provided to Corrective Services NSW.

4. The parties be at liberty to apply in the event that the respondent purges his contempt.

5. The orders previously made prohibiting the publication of the respondent’s name, and suppressing access to the court file are to continue.

6. The respondent is to 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

ABRAHAM J:

1. The respondent pleaded guilty to the offence of contempt of the Australian Criminal Intelligence Commission (ACIC) committed on 31 January 2020 by his refusal during a compulsory examination conducted pursuant to the Australian Crime Commission Act 2002 (Cth) (ACC Act) to answer fourteen questions which he was required to answer.

2. The applicant, an examiner appointed under s 46B of the ACC Act, seeks, inter alia, a declaration that the respondent is guilty of contempt of the ACIC contrary to s 34A(a)(ii) of the ACC Act, and orders for punishment of that contempt.

3. On 4 September 2020, the particulars of the contempt charge was read to the respondent and the respondent pleaded guilty to each of the fourteen contempts particularised in the statement of charge. Accordingly, it falls to me to sentence him.

4. For the reasons set out below, I am satisfied that a fixed sentence of imprisonment is appropriate in the present case and I impose a term of imprisonment of 8 months. I order that there be liberty to apply if the respondent chooses to purge his contempt and if that were to occur I would reconsider the sentence and subject to any further submissions, would be minded to suspend the remainder of the sentence.

Evidence

5. In support of the application the applicant relied on the following material at the hearing:

1. originating application dated 10 June 2020;

2. statement of charge dated 10 June 2020;

3. affidavit of [REDACTED] affirmed on 4 June 2020;

4. affidavit of Cameron Hutchins sworn 24 September 2020;

5. outline of submissions dated 25 September 2020;

6. an aide memoire of comparative sentences.

6. In addition, filed after the hearing with leave, was the affidavit of Shane Douglas Neilson sworn 13 November 2020.

7. The respondent relied on the following material:

1. outline of submissions filed on 29 October 2020;

2. character references from his employer dated 21 October 2020, a work colleague dated 23 October 2020, and his sister dated 21 October 2020.

8. Following the filing of the affidavit of Shane Douglas Neilson dated 13 November 2020 by the applicant the respondent, with leave, filed supplementary submissions on 23 November 2020.

9. In that submission the respondent objected to [25(b)] and [25(c)] of the affidavit of Shane Douglas Neilson on the basis that it is outside the leave granted, and that in any event, it contains opinions of such generality as to be of no real probative value. Those paragraphs are outside the leave granted, and, if evidence was sought to be led on those topics it ought to have been done in chief. The paragraphs are also of a general nature. That said, for the reasons given below, even if those paragraphs were considered they do not affect the result.

Statutory and regulatory background

10. The ACIC, which is established by s 7 of ACC Act, has functions including the collection, correlation, analysis and dissemination of criminal information and intelligence, and undertaking “special operations” relating to “federally relevant criminal activity”: s 7C(1)(c).

11. The Board of the ACIC has issued a number of determinations about high risk and emerging drugs and has determined that they are special operations.

12. Relevantly, the examination in this matter was for the purposes of a Special ACIC Operation being undertaken by the ACIC...