Sage v CFS22

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 05 September 2022
• Neutral Citation: [2022] FCA 1023
• Date: 05 September 2022

Federal Court of Australia

Sage v CFS22 [2022] FCA 1023

File number:	NSD 484 of 2022
Judgment of:	BROMWICH J
Date of judgment:	5 September 2022
Catchwords:	CONTEMPT OF COURT – sentencing – where the respondent appearing before the Australian Criminal Intelligence Commission as a witness, refused to answer 2 questions when required by the Commissioner to do so – where the respondent is charged with 2 charges of contempt arising from the refusal to answer questions by the Commissioner – where the respond pleaded guilty to both charges of contempt – where respondent did not purge his contempt despite opportunities to do so – whether the sentence imposed should be for a fixed duration or for an indeterminate period – Held: sentence of eight months imprisonment imposed, to be released after the expiry of four months, to commence after the conclusion of the respondent’s non-parole period
Legislation:	Australian Crime Commission Act 2002 (Cth) ss 7, 28(1), 30(1), 30(2), 33, 34A, 34A(a)(ii), 34B, 34B(6), 34(C), 35, 46B Crimes Act 1914 (Cth) Part 1B Criminal Code Act 1995 (Cth) Chapter 2 Federal Court of Australia Act 1976 (Cth) s 37AF
Cases cited:	Anderson v BYFl9 [2019] FCA 1959 Australian Competition and Consumer Commission v Info4pc.com Pty Ltd (2002) 121 FCR 24 Australian Crime Commission v DTO21 [2022] FCA 288 Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448 Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2016) 247 FCR 277 Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; (2017) 256 FCR 90 Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183 R v Razzak [2006] NSWSC 1366 Witham v Holloway (1995) 183 CLR 525 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:	47
Date of hearing:	[REDACTED]
Solicitor appearing in Court for the Applicant:	Mr C Hutchins
Solicitors for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr M Hutchings (direct access)

ORDERS

		NSD 484 of 2022
BETWEEN:	GEOFFREY ERNEST SAGE AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 (CTH) Applicant
AND:	CFS22 Respondent

order made by:	BROMWICH J
DATE OF ORDER:	5 september 2022

THE COURT DECLARES THAT:

1. The respondent is guilty of two charges of contempt of the Australian Crime Commission in that, on [REDACTED] and on [REDACTED], being a witness appearing at an examination before an Examiner, he refused to answer two questions when required by the Examiner to do so, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth).

THE COURT ORDERS THAT:

2. The respondent be imprisoned for 8 months on and from [REDACTED], to be released after the expiry of 4 months on condition that he be of good behaviour for the balance of his sentence.

3. By or before 1 November 2022, a warrant for the respondent’s committal to prison be issued and be provided to Corrective Services NSW, together with a copy of these Orders.

4. If the respondent purges his contempt:

   1. the applicant notify the Associate to Justice Bromwich of that within 2 working days; and

(b) either party has liberty to apply for an order discharging or modifying order 2 and/or order 3.

5. Liberty to apply generally.

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 Justice Bromwich a proposed redacted version of the reasons for judgment which the parties consider is appropriate for publication.

7. Liberty to apply generally.

8. The respondent pay the applicant’s costs of the originating application and statement of charge as agreed or assessed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1. These are reasons for the delayed sentence of imprisonment imposed upon the respondent for contempt of the Australian Crime Commission. By force of statute and also by regulation, the Commission is also known interchangeably as the Australian Criminal Intelligence Commission. The respondent’s contempt, which he admits, comprises refusing to answer two questions on two separate examination days as to the identity of certain persons who were involved with him in the commission of a serious criminal offence. He gave evidence as to what he had done while refusing to identify [REDACTED] other participants, as well as giving other evidence.

2. The applicant, Mr Geoffrey Sage, is an Examiner appointed under s 46B of the Australian Crime Commission Act 2002 (Cth). On 7 March 2022, Mr Sage issued a summons to the respondent under s 28(1) of the Act. The summons required the respondent to appear at an examination on [REDACTED]. The summons was served on the respondent in person on[REDACTED]. Among the documents annexed to the summons were explanatory notes, which informed the respondent that he could consult a lawyer, and advised that he must answer any questions as required by the examiner, together with warnings about criminal offences and contempt for not complying with such requirements.

3. The respondent attended the examination on [REDACTED] and again on [REDACTED]. He was represented by counsel, who also appears for him in this proceeding. I have considered all of the transcript of the examination on both days, and read closely the particular pages and passages relied upon by the parties. In short, the respondent answered [REDACTED] other questions [REDACTED] on the first day, and [REDACTED] on the second day, [REDACTED]. On both days he refused to identify the other persons involved in the criminal offence for which he was sentenced to a lengthy term of imprisonment. He expressed fears for his and his family’s safety and was not satisfied that the Commission could or would take sufficient steps to protect him and his family.

4. The fears the respondent expressed in this matter, while not specific in referring to any direct threat having been made, were not generalised either, as Mr Sage contends. It was made clear enough during the examination that the unnamed persons involved in the previous criminal offending were the direct or indirect source of the fears he held. The fears expressed were not inherently implausible, especially given some aspects of what took place between the two examination days, which is not necessary or desirable to spell out. This goes some way to mitigate the seriousness of the non-compliance.

5. The following general summary of what took place at the examination on the two days suffices for present purposes:

1. the respondent took an affirmation;

2. after introductory and explanatory matters over several pages, he answered all questions asked of him on a range of...