Lusty v CVA22

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 23 February 2023
• Neutral Citation: [2023] FCA 130
• Date: 23 February 2023

Federal Court of Australia

Lusty v CVA22 [2023] FCA 130

File number(s):	NSD 634 of 2022
Judgment of:	THAWLEY J
Date of judgment:	23 February 2023
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 – fixed term of 8 months imprisonment imposed
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 4, 7, 24A, 25A(9), 28, 30(5), 34A(a)(ii), 34B, 46B Criminal Code Act 1995 (Cth) ss 11.5(1), 302.2(1), 400.9(1) Crimes Act 1900 (NSW) s 193C(2) Criminal Procedure Act 1986 (NSW) s 82 Drug Misuse and Trafficking Act 1985 (NSW) s 24(2) Explanatory Memorandum, Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth)
Cases cited:	Anderson v GPY18 [2019] FCA 954 Australian Crime Commission v DTO21 [2022] FCA 288 Hannaford v HH (No 2) [2012] FCA 560; 203 FCR 501 Lusty v CRA20 [2020] FCA 1737 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Sara [2020] NSWCCA 119 Sage v CFS22 [2022] FCA 1023 Wood v Staunton (No 5) (1996) 86 A Crim R 183 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Division:	General Division
Registry:	New South Wales
National Practice Area:	Federal Crime and Related Proceedings
Number of paragraphs:	82
Date of hearing:	[REDACTED]
Counsel for the Applicant:	Ms J Single SC
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr A Djemal
Solicitor for the Respondent:	Zahr Partners

ORDERS

		NSD 634 of 2022
BETWEEN:	DAVID LUSTY AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 Applicant
AND:	CVA22 Respondent

order made by:	THAWLEY J
DATE OF ORDER:	23 FEBRUARY 2023

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 [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).

THE COURT ORDERS THAT:

1. The respondent be imprisoned for eight months commencing [REDACTED] and ending on [REDACTED].

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. Reserve liberty to the parties to apply in the event that the respondent purges his contempt before the expiration of the period of imprisonment.

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

5. Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c):

   1. 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.

Note: Order 1 was amended on 7 March 2023 to substitute [REDACTED] with [REDACTED] pursuant to rule 39.05(h) of the Federal Court Rules 2011 (Cth).

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1. By an originating application filed on 10 August 2022 the applicant, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), sought a declaration that the respondent (CVA22) was guilty of contempt of the Australian Criminal Intelligence Commission (ACIC) and orders for punishment of that contempt. The contempt arose by reason of CVA22’s refusal to answer seven questions during an examination conducted on [REDACTED] pursuant to the AAC Act.

2. At the hearing on [REDACTED], and consistently with what had been communicated to the Court on 21 September 2022, CVA22 pleaded guilty to seven charges of contempt.

3. The principal issue, therefore, is what orders should be made for punishment of the contempt.

4. The applicant relied upon the following material:

1. Affidavit of [REDACTED] sworn 25 July 2022

2. Affidavit of Cameron Hutchins sworn 29 September 2022

3. Affidavit of Jason Leigh Halls sworn 29 September 2022

4. Outline of submissions dated 30 September 2022

5. Affidavit of Jason Leigh Halls sworn 23 November 2022

5. CVA22 relied on the following material:

1. Affidavit of [REDACTED] sworn 11 November 2022, parts of which were rejected

2. Affidavit of Aisha Lopez sworn 13 November 2022

3. Letter of apology written by CVA22 dated 11 November 2022

4. Outline of submissions dated 14 November 2022

5. Expert report of Shannon Burgess dated 21 November 2022

6. As discussed later, Mr Halls and Ms Burgess were cross-examined.

LEGISLATIVE FRAMEWORK

7. The ACIC is established by s 7 of the ACC Act. One of the functions of the ACIC is to undertake special ACIC operations, including investigations into various forms of “serious and organised crime”: s 7A(c). Examinations of persons by examiners is one of the ways that the ACIC discharges its functions.

8. 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. An examiner may conduct an examination for the purposes of a special ACC operation or
   investigation: s 24A(1).

9. In Sage v CFS22 [2022] FCA 1023 at [15], Bromwich J observed:

Examinations are a key part of the Commission’s functions, enabling it to obtain information that would not otherwise be available or only be able to be obtained after lengthy and detailed investigations, assisting in understanding how serious and organised crime operates, and helping to produce intelligence information to use and to disseminate to law enforcement agencies: see p 28 of the Explanatory Memorandum to the Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth).

10. In 2015, the ACC Act was amended in light of the consequences which resulted from the decision of the majority of the High Court in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92. The Explanatory Memorandum to the Law Enforcement Legislation Amendment (Powers) Bill 2015 (Cth) explained:

The ACC has found that its inability to conduct post-charge examinations following X7 has reduced its effectiveness in tackling serious and organised crime and assisting with efforts to combat the threat of foreign fighters. While the ACC is unable to conduct post-charge examinations, it must either:

• examine a person before he or she is charged, or

• wait until all charges against the person have been resolved before examining him or her.

Both of these outcomes adversely impact on the ACC and its partners’ ability to understand, disrupt and prevent serious and organised crime. Examining a person who is a member of an organised crime group before they are charged may alert the person to law enforcement interest and allow them to dispose of incriminating material and notify others in the group. In...