FEDERAL COURT OF AUSTRALIA

Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2002 v ZZ (No 2) [2015] FCA 450

THE COURT ORDERS THAT:

1.    On the charges of contempt of the Australian Crime Commission (the Commission) against the respondent under s 34A(c) of the Australian Crime Commission Act 2002 (Cth) in the further further amended statement of charges dated 30 March 2015:

(a)    there be a verdict that the respondent is not guilty on each of particulars of contempt 1 and 5;

(b)    particulars of contempt 4, 8 and 9 be dismissed;

(c)    there be a verdict on particular of contempt 2 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(d)    there be a verdict on particular of contempt 3 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know, did not recall meeting and had not met the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner;

(e)    there be a verdict on particular of contempt 6 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(f)    there be a verdict on particular of contempt 7 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise and did not know the name of the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner.

2.    Pursuant to s 77(1)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW), the Governor of the Metropolitan Reception and Remand Centre or such other prison in the State of New South Wales in which ZZ is held in lawful custody, have ZZ, a person in lawful custody, appear before the Federal Court of Australia at Queens Square, Sydney, NSW 2000 during the further hearing of the proceeding concerning him on 23 October 2015 and duly returned to confinement thereafter, unless the Court otherwise orders.

3.    For the purposes of the performance of the duties of the Sheriff, the Officer in Charge of the Metropolitan Reception and Remand Centre and their proper officers, pursuant to the warrant for imprisonment signed by the Honourable Justice Rares today, each of those persons may know that the name of ZZ is XXXXX but each such person must comply with order 1 made on 17 April 2014 in respect of the suppression and non-publication of the name and any means of identifying ZZ until further order of the Court.

4.    A copy of the redacted report of Dr Furst be provided to the Sheriff for transmission to the Governor of the Metropolitan Reception and Remand Centre.

5.    The parties may restore the proceedings on 24 hours’ notice, or such other notice as to a judge seems fit.

THE COURT NOTES THAT:

6.    Dr Furst has recommended that the respondent be assessed as to whether he:

a.    should be placed under the care of:

i.    a psychiatrist working for Justice Health to review his symptoms;

ii.    a clinical psychologist from the Department of Corrective Services;

b.    is eligible to participate in a custody based drug and alcohol rehabilitation program.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    I must now impose a sentence on the respondent in respect of my earlier findings that he was guilty of four counts of being in of contempt of the Australian Crime Commission under s 34A(c) of the Australian Crime Commission Act 2002 (Cth): Sage, an examiner appointed under s 46B of the Australian Crime Commission Act 2000 v ZZ [2015] FCA 417.

The power to punish for contempt

2    The Court has power under s 34B(5) of the Act to deal with a person whom it has found to be in contempt of the Commission “as if the acts or omissions involved constituted a contempt of [the] Court”. The Federal Court of Australia Act 1976 (Cth) provides in s 31(1) that, relevantly, the Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.

3    The Parliament recognised that the contempt power is an inherent incident of the judicial power of the Commonwealth. That power is protective of the power and authority of the judicature to declare authoritatively the rights and liabilities of parties, and to enforce those rights and liabilities according to law. The contempt power is necessary to ensure that persons not only respect but also obey orders of the Court, as an institution of our system of government under the rule of law.

4    A person cannot be free to flout or ignore orders made by the courts in exercise of their judicial power as the third arm of government in our society. Nor can a person be free to flout or ignore his, her or its obligations to obey the law as made by, or with the delegated authority of, the Parliament and found by a Court in the exercise of its judicial powers to apply to that person. In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 114 Gibbs CJ, Mason, Wilson and Deane JJ said, in an appeal from the Full Court of this Court:

There will often be elements of futurity in orders of a court which are designed to bring a contempt of court to an end. At stake is the public interest in vindicating the authority of the court and maintaining respect for the law. In principle, there is no good reason in appropriate circumstances for denying a court access to such a means of bringing a contempt to an end. There are ample precedents where courts have taken strong measures in order to coerce compliance with an order of the court. In the case of an individual contemnor, he may be imprisoned until the contempt is purged. The committal to prison is of a conditional nature, remaining in force until the contempt comes to an end or further order is made. As soon as the contempt is purged, the offender is entitled to release ex debito justitiae: In re Freston [(1883) 11 QBD 545 at 554-555, 557]. In the case of a corporation, its assets may be seized and remain seized until the contempt ceases. Such an order again exhibits a conditional character. There is much to be said for securing to a superior court a wide range of remedies so that it will be better able to meet the exigencies of particular circumstances. (emphasis added)

They continued (161 CLR at 115):

These are considerable powers, resort to which imposes a heavy responsibility upon a court confronted with a determined challenge to its authority. The propriety of their exercise cannot be measured solely by reference to the established procedures attending the prosecution of ordinary breaches of the law. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v. Crown Office [[1970] 2 QB 114, at 129)]. It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result. (emphasis added)

5    Their Honours said that there was an important public interest that “the armoury of remedies available to a superior court is designed to serve”.

The nature of the present contempt

6    The class of contempt that the respondent committed is not only confined to his false swearing but extends to his obstruction or frustration of the conduct of the investigation that the Commission is undertaking. This is a case where the false evidence of the respondent’s knowledge of YAAY was more than mere perjury. His conduct obstructed the Commission in obtaining evidence that it required for its investigation. That is conduct that, had it occurred in a judicial proceeding, would have amounted to a serious contempt of court sufficient to attract a summary trial on a charge of contempt by the presiding judge: cf Keeley v Mr Justice Brooking (1979) 143 CLR 162 at 170 per Barwick CJ, 178-179 per Mason and Aickin JJ.

Where a person gives false evidence to a public officer, as occurred here, or to a tribunal to which the Parliament has granted power to compel that person to give evidence, that conduct can interfere with not just what the officer or tribunal is doing, but with the general observance of the law by others in the community. Thus, in Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118 King CJ, with whom Zelling and Wells JJ agreed, dismissed an appeal against an order committing a witness to prison for an indeterminate term while he continued to refuse to comply with a Court order requiring him to answer questions before an inspector conducting an inquiry under companies’ legislation. King CJ said that the witness could purge his contempt by giving the answers required but continued saying:

We refer, with respect and briefly, to the passage referred to by counsel in the judgment of Mitchell J on the occasion of committal or attachment, which I now cite:

“If witnesses questioned or to be questioned by an inspector appointed under the Code were allowed to gain the impression that information rightly sought by the inspector could be withheld from him by the mere payment of a tariff, the investigation might well prove completely ineffective” [(1982) 30 SASR at 399].

It is to be emphasized that those answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation. It gives no pleasure to this Court to see an otherwise law-abiding citizen confined to prison. This is particularly so in view of the applicant's heart condition, which we are sure nevertheless will be carefully monitored and if necessary treated under the direction of the prison authorities. But it must be emphasized that the situation is entirely of the applicant's own making. His continuing defiance of the law leaves open to us only one course, however unpleasant, which in the circumstances which he has created is consistent with the court's duty to uphold the law. (emphasis added)

7    Those observations apply to the respondent’s position in these proceedings.

The relevance of an offender’s health to sentencing

8    The impact of a custodial or other sentence on the health of an offender is a relevant matter for the Court to consider in framing the sentence that it imposes. The applicable principle was explained by King CJ, with whom Cox and O’Loughlin JJ agreed, in R v Smith (1987) 44 SASR 587 at 589, namely:

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health. (emphasis added)

9    That principle has been applied by numerous Courts of Criminal Appeal. In R v Bailey (1988) 35 A Crim R 458, at 462 Lee J, with whom Maxwell and Yeldham JJ agreed, cited what King CJ said and stressed that the law recognised that the provision of proper medical attention to a convict in custody is the responsibility of the prison authorities and that the Court will not interfere in that regard. And Neave JA, with whom Vincent JA and King AJA agreed in R v Kovac (2006) 166 A Crim R 358 at 362, adopted the reasons expressed by Callaway JA with the agreement of Ormiston and Charles JJA in R v Van Boxtel (2005) 11 VR 258 at 268 that the first limb of the principle in the last sentence in that passage quoted above from Smith 44 SASR at 589 contemplated that the offender’s ill-health would make his or her imprisonment a greater burden. Callaway JA added:

The additional burden of imprisonment is then taken into account as a mitigating factor … The weight to be given to such mitigating factors is another matter altogether. In some cases, they are of great consequence; in other cases, they make no difference when all the relevant circumstances are taken into account.

The circumstances of the contempts

10    On 2 April 2015, I found you guilty of four counts of contempt of the Commission under s 34A(c) for the reasons I gave on that occasion: Sage [2015] FCA 417.

11    The contempts occurred on two different occasions, namely two on 3 February 2014 and the other two on 7 March 2014. Relevantly, each of the contempts involved you giving evidence before the examiner that you knew to be false in a material particular. The essence of your knowledge of the falsity of your evidence was that you denied knowing, recollecting or ever meeting a man who was given the pseudonym YAAY. He was a person whose image appeared in two photographs you were questioned on, being exhibits 5 and 6 in the examination. He was a man whom I found you did know well before 29 September 2013, which was the occasion on which the photograph being exhibit 5 was taken.

12    The first two contempts occurred on 3 February 2014, when you were not represented by a lawyer. Nonetheless, I am satisfied beyond reasonable doubt that your conduct in giving the knowingly false answers for which I convicted you on counts 2 and 3 was conscious and deliberate, and not affected by any post-traumatic stress disorder or other mental illness from which you may have been suffering.

13    The second two contempts occurred after a lengthy adjournment of over four weeks, on 7 March 2014, after you had had the opportunity to seek legal advice and medical help. You had had time to reconsider whether you wished, after taking legal advice, to adhere to your previous knowingly false evidence concerning your knowledge of YAAY. I am satisfied beyond reasonable doubt that on 7 March 2014 you deliberately chose to repeat that knowingly false evidence. I consider that this is a factor that aggravates significantly the character of your two contempts on 7 March 2014. You had had ample time to reflect on what you were doing and to receive legal and medical advice. There is no possibility that your answers on that occasion were other than pre-meditated lies and, so, were contempts of the most serious kind.

14    As I found, the purpose of your examination was to provide information for a special operation conducted by the Commission in support of the Australian Federal Police/Joint Counter Terrorism Team Operation investigation into certain alleged activities of YAAY and others: Sage [2015] FCA 417 at [21]. The operation involved matters important to the Commonwealth relating to national and international security.

15    The Commission has been given important functions and powers by the Parliament under the Australian Crime Commission Act. These include the conduct of compulsory examinations of persons, such as yourself, for the purposes of an intelligence operation that it is undertaking and that its Board has determined to be a special ACC operation/investigation (ss 4(1) and 28). Under the Act, an intelligence operation is one that is primarily directed towards, among other matters, the collection of criminal information and intelligence relating to offences against a law of the Commonwealth or Territory, or against a law of a State that has a federal aspect. The Parliament has decided that the Commission should have the lawful authority to exercise these functions and powers for the public interest, including the security of Australia.

Subjective factors

16    I have taken into account that you have no previous criminal history, that you are only 21 years of age and were just on either side of 20 when the two sets of offending occurred. I also take into account that you are unemployed, although, as your father said, you occasionally have casual employment in a tree lopping business, and live at home with your family with your parents and younger sister who is still at school. You have no dependents. You do not appear to have any savings or assets to forfeit or with which to pay a fine.

17    I have taken into account that you are possibly lacking maturity and that, as Dr Furst said in his most recent report, you appear to function at a low intellectual level, having an IQ in the lowest 6% of the population. These factors may have impacted on your decision-making and judgment when answering questions put to you in the examination. I am also conscious that, in your present circumstances, you have had ample opportunity to obtain advice, not only from counsel and solicitors but also your family and others concerned for your welfare, as to what you may be subjecting yourself to by failing or refusing to purge your contempt. And, I have taken into account that even as counsel were addressing today, you had a further opportunity, after a short adjournment, to avoid the sentence that I was suggesting that I might impose by purging your contempt even at that point, but you have not given your counsel instructions that you wish to do so.

18    As Dr Furst noted, you are sufficiently aware of your current predicament to appear to be anxious about your fate today. I have taken into account the supportive evidence which your father has given today, including how he has perceived your personality to have changed following your incarceration in the Middle Eastern intelligence organisation’s prison for a month in 2012. I have weighed that evidence against what I observed on the CCTV footage at Sydney airport on 29 September 2013, where you were interacting with YAAY and others in a perfectly normal fashion, showing no indication of any mental distress. In that CCTV footage, you were laughing and acting normally in what appeared to be a perfectly happy and congenial situation, in which you found yourself with a person you were well familiar with, being YAAY.

19    I accept that you were incarcerated for one month by the Middle Eastern intelligence agency in late 2012 when you were only 18 years old, and no doubt, as Dr Furst and others have indicated, that experience was traumatic and probably harrowing for you. The psychiatric and psychological evidence suggested that that experience was capable of causing PTSD. In his most recent assessment of your condition, based on a 40-minute consultation with you on 27 April 2015, Dr Furst said:

Mr ZZ presents with a high level of anxiety, depressed mood, and apparent re-experiencing phenomena in the form of flashbacks and nightmares about the interrogation he apparently endured when he was detained in [redacted] in 2012.

I remain of the opinion that his pattern of reported symptoms and observations of anxiety/stress at times of recent psychological assessments probably meets criteria for the diagnosis of post-traumatic stress disorder (PTSD), assuming the veracity of his self-report.

He probably also meets criteria for a substance use disorder (alcohol abuse); however, there was insufficient evidence to suggest he is dependent on alcohol or any other drugs. (emphasis added)

However, he also said:

A review of the transcript and video footage of the examinations suggests he understood the questions put to him and was able to pay attention to the examiners. The veracity of his statements and reported lack of memory is a matter for the trier of fact to determine on the available evidence.

20    I have found that your statements to the examiner concerning YAAY were not truthful, and knowingly so. I have no doubt at all that you knew who YAAY was when you gave the answers about which I have convicted you on each of the four counts of contempt, and that you chose deliberately to lie about that without being in any way affected at any of those times by PTSD.

21    Dr Furst has considerable professional experience in forensic assessments. Since 2004 he has been a consultant psychiatrist for the New South Wales Justice Health, Metropolitan Special Programs Centre at Long Bay Correctional Centre. I accept Dr Furst’s opinion qualified as it is in respect of PTSD that:

The presence of PTSD, youth, previous experiences of being detained in [redacted], and his emotional immaturity generally will probably make a custodial sentence weigh more heavily on Mr ZZ than the average inmate.

22    I note that Dr Furst does not say that a custodial sentence would cause irreparable or irreversible harm. Indeed, he said that if you were given a custodial sentence you should be placed under the care of a psychiatrist working for Justice Health to review your symptoms and prescribe appropriate anti-depressant medication, in circumstances where despite your asserted mental state, you have failed for over one year to seek or take medical advice or treatment. He also recommended psychological counselling from a clinical psychologist with the New South Wales Department of Corrective Services, jail based drug and alcohol programs for you, together with you undertaking work and educational programs.

23    On the basis of Dr Furst’s report I am satisfied that a custodial sentence will not cause you or your mental health any irreparable or, indeed, substantive harm. However, I accept his opinion that such a sentence will probably weigh more heavily on you than the average inmate. Nonetheless, as his second report makes clear, you have not sought any treatment for your possible PTSD in the 14 months since you first saw him. If there is some adverse impact on your mental health in prison there are, on Dr Furst’s evidence, proper facilities in the prison system to provide appropriate care for you; indeed, the prison authorities will have that responsibility whether your condition is adversely affected or not.

24    You have not expressed any remorse or regret for your deliberate conduct. Nor have you offered to purge your contempt by answering the examiner’s questions. That is despite you having five weeks since I found you to have committed during which you had ample time to reflect on whether or not you should purge your contempt. Dr Furst said that when he recently examined you there were no indications that you were thought disordered or psychotic and that you did not appear to be severely depressed. He did not express an opinion that you were incapable of understanding that you had a clear choice that would enable you to avoid going to prison if you chose to purge your contempt.

Conclusion

25    I find that your failure to purge your contempt shows that there is no alternative but to order that you to go to prison. That is because, first, you must be punished for your continued deliberate defiance of your legal obligations to answer questions in the examination truthfully and, secondly, there is a fundamental need to deter others from doing what your are doing. I accept Dr Furst’s opinion that you have reasonable prospects of being successfully rehabilitated. I also find that you are likely to receive treatment for whatever mental conditions you may have and that you are not receiving any such treatment now.

26    You have no assets or earnings, so fining you or threatening to take any assets you might have had would serve no purpose. Your counsel has suggested that I could impose a suspended sentence of imprisonment on you. In my opinion, that would provide a derisory result that would not achieve the purpose of vindicating the Court’s power and authority to compel you to fulfil your civil obligation to answer questions before the examiner according to the law.

27    To the extent that imprisonment may affect your mental health, you have consciously chosen to defy the Court and your legal obligation by not offering to purge your contempt. You have brought the punishment of indefinite imprisonment on yourself by continuing to treat your legal obligations with contempt.

28    It gives me no pleasure to see a young person with no criminal history, such as yourself, sent to prison. But you have left the Court with no real choice in your sentence. The Court must uphold the law. It must require witnesses in administrative proceedings, like those in which you are a witness before the examiner, to comply with their legal obligations and answer questions. There is only one way to do this in your case and that is to send you to prison until you purge your contempt. You can do that at any time.

29    Please stand up. On the charges of contempt of the Commission against the respondent under s 34A(c) of the Australian Crime Commission Act in the further further amended statement of charges dated 30 March 2015, I order that:

(a)    there be a verdict that the respondent is not guilty on each of particulars of contempt 1 and 5;

(b)    particulars of contempt 4, 8 and 9 be dismissed;

(c)    there be a verdict on particular of contempt 2 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(d)    there be a verdict on particular of contempt 3 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 3 February 2014 that the respondent knew to be false in a material particular namely, that he did not know, did not recall meeting and had not met the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner;

(e)    there be a verdict on particular of contempt 6 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not recognise the person with the pseudonym YAAY in the photograph being exhibit 5 before the examiner;

(f)    there be a verdict on particular of contempt 7 that the respondent is guilty of having given evidence at an examination before the applicant, being an examiner under the Act, on 7 March 2014 that the respondent knew to be false in a material particular namely, that he did not know and did not recognise and did not know the name of the person with the pseudonym YAAY in the photograph being exhibit 6 before the examiner.

30    Before I pass sentence on you is there anything you want to say in your own defence that your counsel has not said?

The respondent:    No.

Mr Scragg:         No, I don’t think he does, your Honour.

31    His Honour: I order that:

1.    Pursuant to s 77(1)(b) of the Crimes (Administration of Sentences) Act 1999 (NSW), the Governor of the Metropolitan Reception and Remand Centre or such other prison in the State of New South Wales in which ZZ is held in lawful custody, have ZZ, a person in lawful custody, appear before the Federal Court of Australia at Queens Square, Sydney, NSW 2000 during the further hearing of the proceeding concerning him on 23 October 2015 and duly returned to confinement thereafter, unless the Court otherwise orders.

2.    For the purposes of the performance of the duties of the Sheriff, the Officer in Charge of the Metropolitan Reception and Remand Centre and their proper officers, pursuant to the warrant for imprisonment signed by the Honourable Justice Rares today, each of those persons may know that the name of ZZ is [redacted] but each such person must comply with order 1 made on 17 April 2014 in respect of the suppression and non-publication of the name and any means of identifying ZZ until further order of the Court.

3.    A copy of the redacted report of Dr Furst be provided to the Sheriff for transmission to the Governor of the Metropolitan Reception and Remand Centre.

4.    The parties may restore the proceedings on 24 hours’ notice, or such other notice as to a judge seems fit.

I note that:

5.    Dr Furst has recommended that the respondent be assessed as to whether he:

a.    should be placed under the care of

i.    a psychiatrist working for Justice Health to review his symptoms

ii.    a clinical psychologist from the Department of Corrective Services

b.    is eligible to participate in a custody based drug and alcohol rehabilitation program.

Associate:

Dated:    22 April 2015