Federal Court of Australia
Anderson v EVA20 [2021] FCA 457
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. The Respondent is guilty of contempt of the Australian Criminal Intelligence Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness appearing at an examination before an examiner on 10 September 2020, he refused to answer six questions which the examiner required him to answer.
THE COURT ORDERS THAT:
2. The Respondent be imprisoned until further order.
3. A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.
4. A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.
5. Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:
(a) the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of the Respondent to prison under the warrant;
(b) the Manager of the Yatala Labour Prison;
(c) the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that the Respondent be held; and
(d) such other officers employed by, or otherwise providing services to, the Department of Correctional Services that are necessary to give effect to the warrant.
6. In furtherance of order 5 above, and noting that the Respondent is currently on remand in custody at the Yatala Labour Prison in respect of offences before the District Court of South Australia, order 5 of the orders made on 26 November 2020 be varied, only to the extent that it is necessary to publish the Respondent’s name to:
(a) any judicial officer of the State of South Australia considering the Respondent’s sentence for any criminal offending, of which he may be found, or otherwise plead, guilty, during the period of effect of order 2 of these orders;
(b) such court staff, or any other person, as any judicial officer deems necessary to give effect to order 6(a) above; and
(c) any legal representative representing a party to any sentencing proceeding contemplated by order 6(a) above.
7. The Respondent pay the Applicant’s costs of, and incidental to, the application on an indemnity basis.
8. Liberty to apply on 24 hours’ notice.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO J:
1 The applicant in this proceeding is an examiner appointed under s 46B(1) of the Australian Crime Commission Act 2002 (Cth) (the Act). The respondent is a person who received a summons to appear before the examiner at an examination. In the course of the examination, the respondent refused to answer six questions he was required to answer by the examiner.
2 On 5 February 2021, the respondent pleaded guilty to six charges of acting in contempt of the Australian Criminal Intelligence Commission within s 34A of the Act. The Australian Criminal Intelligence Commission is the name and the ACIC is the acronym by which the Australian Crime Commission may also be known by reason of s 7(1A) of the Act and s 8 of the Australian Crime Commission Regulations 2018 (Cth). The respondent must now be sentenced for the six acts of contempt.
3 The orders sought by the applicant are as follows:
THE COURT DECLARES THAT:
1. The Respondent is guilty of contempt of the Australian Criminal Intelligence Commission, pursuant to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) in that, being a witness appearing at an examination before an examiner on 10 September 2020, he refused to answer six questions which the examiner required him to answer.
THE COURT ORDERS THAT:
2. The Respondent be imprisoned until further order.
3. A warrant for the Respondent’s imprisonment issue (the warrant) directed to the Manager of the Yatala Labour Prison.
4. A copy of the warrant, together with a copy of these orders, be provided to the South Australian Department of Correctional Services and the Manager of the Yatala Labour Prison.
5. Order 5 of the orders made on 26 November 2020 be varied so that the Respondent’s name and any relevant material which may identify him may be published in connection with the warrant to:
(a) the Sheriff and any members of his staff, or any members or special members of the Australian Federal Police, involved in facilitating the committal of Respondent to prison under the warrant;
(b) the Manager of the Yatala Labour Prison;
(c) the Manager of such other prison in the State of South Australia to which the Department of Correctional Services may direct that Respondent be held; and
(d) such other officers employed by, or otherwise providing services to, the Department of Correctional Services that are necessary to give effect to the warrant.
6. In furtherance of order 5 above, and noting that the Respondent is currently on remand in custody at the Yatala Labour Prison in respect of offences before the District Court of South Australia, order 5 of the orders made on 26 November 2020 be varied, only to the extent that it is necessary to publish the Respondent’s name to:
(a) any judicial officer of the State of South Australia considering the Respondent’s sentence for any criminal offending, of which he may be found, or otherwise plead, guilty, during the period of effect of order 2 of these orders;
(b) such court staff, or any other person, as any judicial officer deems necessary to give effect to order 6(a) above; and
(c) any legal representative representing a party to any sentencing proceeding contemplated by order 6(a) above.
7. The Respondent pay the Applicant’s costs of, and incidental to, the application on an indemnity basis.
8. Liberty to apply on 24 hours’ notice.
4 The aspects of the statutory scheme in the Act which are relevant to the sentencing of the respondent are as follows.
5 Section 34A(a)(ii) of the Act is as follows:
A person is in contempt of the ACC if he or she:
(a) when appearing as a witness at an examination before an examiner:
(i) …
(ii) refuses or fails to answer a question that he or she is required to answer by the examiner;
6 Section 34A(a)(ii) is in Pt II, Div 2 of the Act. The heading to Div 2 is “Examinations”. Section 24A provides that an examiner may conduct an examination for the purposes of a special ACC operation/investigation. In this case, the relevant ACC operation/investigation is a special ACC operation which is defined in s 4 of the Act to mean an intelligence operation that the Board of the ACC has authorised to occur. Section 7C(2) provides that the Board may make a determination, in writing, authorising a special operation to occur.
7 Returning to Div 2, Pt II of the Act, s 28 provides that an examiner may summon a person to appear before an examiner at an examination to give evidence:
…
if the examiner is satisfied that issuing the summons is:
(c) in all cases—reasonable in the circumstances; and
(d) in the case of a post-charge, or post-confiscation application, summons—reasonably necessary for the purposes of the relevant special ACC operation/investigation even though:
(i) the person has been charged or the confiscation proceeding has commenced; or
(ii) that charge or proceeding is imminent.
8 Section 30(2)(b) provides that a person appearing as a witness at an examination before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner. Section 30(6) provides that a person who contravenes this provision commits an indictable offence.
9 The contempt procedure is an alternative to the prosecution of an examinee for the offence of refusing or failing to answer a question that he is required to answer by the examinee. Section 34B(1) provides that an examiner who is of the opinion that, during an examination before the examiner, a person is in contempt of the ACC, may apply to this Court for the person to be dealt with in relation to the contempt. Section 34B(2) provides that before making the application, the examiner must inform the person that the examiner proposes to make the application. The application to the Court must be accompanied by a certificate that states the grounds for making the application and the evidence in support of the application (s 34B(3)). Section 34B(5) provides as follows:
(5) If, after:
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in support of the ACC; and
(c) hearing or receiving any evidence or statements by or in support of the person;
the Court to which the application was made finds that the person was in contempt of the ACC, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.
10 Finally, for the purposes of the present case, s 34C(2) provides that in a case such as the present the proceedings are “to be instituted, carried on, heard and determined in accordance with the laws (including any Rules of Court) that apply in relation to the punishment of a contempt of the Court to which the application was made”.
11 The principal matters surrounding the respondent’s commission of the six acts of contempt are as follows.
12 The relevant determination in this case was made on 28 July 2020 and is the Special Australian Criminal Intelligence Commission Operation Determination (High Risk and Emerging Drugs) 2020 (the Determination). “High risk and emerging drugs” is defined in the Determination to mean:
(a) in the case of high risk drugs, any controlled drug or drug analogue of a controlled drug, controlled plant or controlled precursor; or a border controlled drug or drug analogue of a border controlled drug, border controlled plant or border controlled precursor as those terms are defined for the purposes of Part 9.1 of the Criminal Code;
(b) in the case of emerging drugs;
(i) any performance or image-enhancing drug or substance, dealings with which would amount to a contravention of Part 3-1 or 3-2 of the Therapeutic Goods Act 1989 (Cth) including any prohibited substance for the purposes of the World Anti-Doping Agency Code; or
(ii) any psychoactive substance as defined in section 320.1 of the Criminal Code,
(iii) any therapeutic goods, not being medical devices, which are counterfeit goods under section 42E of the Therapeutic Goods Act 1989 (Cth);
13 The Determination contains the following authorisation:
4 Authorisation
Pursuant to paragraph 7C(1)(c) and subsection 7C(2) of the Act, the Board authorises a special ACIC operation to occur, namely an intelligence operation relating to specified criminal activity.
14 Paragraph 6 of the Determination provides as follows:
6 Public Interest
Pursuant to subsection 7C(4A) of the Act, the Board considers on the basis of the collective experience of the Board members voting at the meeting when this determination is made, that it is in the public interest that the Board authorise the special ACIC operation, identified at paragraph 4 above, to occur.
15 The purposes of the intelligence operation are set out in paragraph 9 of the Determination. That paragraph provides as follows:
9 Purposes of the intelligence operation
The purposes of the intelligence operation are to:
(a) collect, correlate and analyse criminal information and intelligence relating to the specified criminal activity, to disseminate that information and intelligence in accordance with the Act and to inform the Board in relation to that information and intelligence;
(b) identify the entities involved in the specified criminal activity, and the nature of the activity, and as appropriate, refer that information to other bodies;
(c) make appropriate recommendations to the Board and other bodies about suggested investigative and other responses;
(d) reduce the incidence and effect of the specified criminal activity (including any adverse impacts on Australia’s national interests) including through:-
(i) disruption and/or prevention;
(ii) making markets, sectors, infrastructure and capabilities more resilient to the specified criminal activity;
(e) make appropriate recommendations to the Board and other bodies about reform of:
(i) the law relating to relevant offences;
(ii) relevant policies and administrative practices; and
(iii) the administration of the courts in relation to trials of relevant offences; and
(f) consistent with the definition of intelligence operation in the Act and the purposes above, to investigate the specified criminal activity and to collect evidence about that activity and facilitate the apprehension and, if appropriate, the prosecution of entities involved in it.
16 On 31 August 2020, the applicant issued a summons to the respondent to appear before an examiner on 10 September 2020. On 2 September 2020, an investigator with the ACIC served the summons on the respondent. The following documents were annexed to the summons served on the respondent: the Determination, a document titled “Statement of Rights and Obligations pursuant to subsection 29A(3) of the Australian Crime Commission Act 2002” and Explanatory Notes.
17 The evidence adduced by the applicant establishes that the special operation identified in the Determination is ongoing and that it is a significant aspect of the ACIC’s ongoing intelligence function.
18 On 10 September 2020, the respondent attended before the examiner with a lawyer. The examiner advised the respondent that the examination was conducted in private with only members of the staff of the ACIC present. The examiner required the respondent to take an oath or affirmation and the respondent indicated that he would give an affirmation. The examiner approved the terms of the affirmation that was to be administered to the respondent and an affirmation was administered to the respondent in those terms. The respondent made his affirmation. The examiner then offered the respondent the opportunity to claim the protection against self-incrimination under s 30(5) of the Act. The respondent did not accept the offer and no order was made under that provision. During the course of the examination, a number of questions that were material to the work of the ACIC were asked of the respondent, each of which he refused to answer. The examiner adjourned the examination so that the respondent could obtain legal advice. The respondent was then asked six questions connected with the arrest of the respondent on 26 February 2020 which he refused to answer. The six questions were as follows:
When you were arrested, were you in possession of an international mail item?
Did that item contain methamphetamine?
At the time of your arrest, were you driving a [REDACTED make of motor vehicle]?
… so from a search of that vehicle the AFP located … forty three thousand, nine hundred and fifty dollars ($43,950.00) and a quantity of methamphetamine. Was the money that was located yours?
Was the methamphetamine that was located yours?
… A search of your residence at [REDACTED residential address] located eighty one thousand four hundred and thirty-five dollars ($81,435.00), a quantity of cocaine and a quantity of methamphetamine. Was the cocaine that was located yours?
The applicant required the respondent to answer each of these questions, but he refused. The applicant advised the respondent that the questions which the respondent refused to answer are questions which were material to the work of the ACIC. The examiner also advised the respondent pursuant to s 34B(2) of the Act that he was of the opinion that the respondent was in contempt of the ACIC and that he proposed to make an application to the Court for the respondent to be dealt with in relation to the contempt. The applicant advised the respondent that in contempt proceedings, he was likely to face imprisonment straight away.
19 The examiner then made a confidentiality direction under s 25A(9)(b) of the Act. It is not necessary for me to set out the details of that direction. The examination was then adjourned to 20 October 2020.
20 On 16 October 2020, the respondent was served with the certificate of the applicant as required by s 34B(4) and with covering correspondence.
21 The examination resumed on 20 October 2020 when the respondent appeared and was represented by a different solicitor to the solicitor who had appeared with him at the earlier examination. The respondent confirmed that he had been served with the certificate. He maintained his refusal to answer the six questions referred to above. The examination was adjourned to 9 December 2020 to enable the applicant to file an application under s 34B(1).
22 A senior lawyer at the ACIC (the ACIC lawyer) has deposed in an affidavit sworn by the ACIC lawyer that the examination of the respondent is on foot and that the ACIC wishes to examine the respondent fully in relation to the matters arising from the summons, including the six questions he has refused to answer. The ACIC lawyer has deposed to the fact that the subject matter of the respondent’s examination is material work to the special operation and is but one element of a broader set of inquiries currently being undertaken at a national level. The ACIC lawyer has also deposed to a belief, based on her knowledge of the ACIC’s intelligence holdings, that the evidence the respondent may give is likely to be important to the overall impact of the special operation. The ACIC lawyer believes that the respondent’s alleged contempt is hampering the ACIC’s important work in pursuing its statutory objectives, as authorised by the special operation instrument in this case. The evidence of the ACIC lawyer is not challenged by the respondent.
23 The evidence adduced by the applicant also establishes that on 8 February 2021, the ACIC lawyer sent an email to the respondent’s solicitor inviting the respondent to purge his contempt at the adjourned examination on 16 March 2021. There was no response to that email. On 1 March 2021, the ACIC lawyer again sent an email to the respondent’s solicitor seeking confirmation of the respondent’s intention to take up the opportunity to purge his contempt at the resumed examination hearing on 16 March 2021. On the same day, the respondent’s solicitor responded to the email by advising that the respondent did not wish to purge his contempt. On 16 March 2021, the examiner adjourned the examination pending the outcome of these proceedings until 20 April 2021. At the penalty hearing before me on 28 April 2021, there was no indication from the respondent that he wished to purge his contempt.
24 On 5 February 2021 when the respondent pleaded guilty to the charges, I made an order that on or before Friday, 19 February 2021, the respondent file and serve an affidavit containing the evidence he proposes to rely on at the penalty hearing regarding his personal circumstances. No such affidavit was filed. I also made an order that the respondent file and serve an outline of submissions limited to 10 pages three days prior to the hearing fixed for 7 April 2021. No such outline of submissions has been filed. In the result, the matters advanced by the respondent were advanced by the respondent’s lawyer in the course of submissions at the penalty hearing.
25 The matters relevant to the sentencing of a respondent for contempt were summarised by White J in Anderson v DKH18 [2018] FCA 1571 (Anderson v DKH18) (at [29]):
The matters relevant to sentencing for contempt have been summarised in a number of the authorities and include:
(i) the seriousness of the contempt;
(ii) whether contemnors are aware of the consequences for themselves of the conduct;
(iii) the actual consequences of the contempt on the relevant trial or inquiry;
(iv) whether the contempt was committed in the context of serious crime;
(v) the reason for the contempt;
(vi) whether the contemnor has received any benefit by indicating an intention to give evidence;
(vii) whether there has been any apology or public expression of contrition;
(viii) the character and antecedents of the contemnor;
(ix) general and personal deterrence; and
(x) denunciation of the contempt.
See, for example, Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185; Hannaford v HH (No 2) [2012] FCA 560, (2012) 203 FCR 501 at [27]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83, (2006) 149 FCR 494 at [25]. In addition, the coercion of the contemnor in a context like the present is a particularly important consideration.
26 The acts of contempt in this case were very serious, the respondent was and is aware of the consequences of his conduct and the evidence establishes that the respondent’s contempt is hampering the ACC’s special operation. In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 (Hannaford v HH), Dodds-Streeton J said (at [57]–[60]):
57 While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC’s examination processes would be hamstrung if all witnesses adopted the respondent’s approach.
58 The evidence before the Court established beyond reasonable doubt that the contempt was deliberate. Further, the respondent was clearly informed that his conduct would expose him to serious penalties, including imprisonment.
59 The Explanatory Memorandum makes clear that a primary objective of the amendments was the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the ACC’s purposes.
60 In the present case, the relevant information is still keenly sought by the ACC. The respondent made no statements to his future intentions and there was no evidence to establish that he would not subsequently be induced to re-evaluate his approach and answer the specified questions.
(see also Anderson v DKH18.)
27 The respondent did not proffer a reason for his refusal to answer the examiner’s questions. I asked his counsel about this and he said that the respondent was not putting forward any reason for refusing to answer questions.
28 The respondent has not offered an apology or publicly expressed contrition.
29 As to the respondent’s character and antecedents, the applicant tendered a document of the South Australian Police which set out the respondent’s criminal history. I will not set out the details. The respondent has been convicted of a number of offences ranging from failing to comply with a bail agreement to an act of serious criminal trespass for which he received a sentence of two years and six months imprisonment. The submissions about the conclusions to be drawn from the respondent’s antecedents were not detailed. The applicant submitted that the respondent’s criminal history shows that he is a person of bad character or, at least, not a person coming before the Court for the first time. The respondent’s counsel asked me to note that the respondent had not been convicted of any offences involving an interference with the administration of justice.
30 The respondent’s counsel said little in the course of submissions about the respondent’s personal circumstances. The respondent grew up in Adelaide as one of three children and went to primary and secondary school in this State. He was employed in the automotive industry. I pointed out to the respondent’s counsel that he had not told me a great deal about the respondent’s personal circumstances.
31 The respondent has deliberately refused to answer the questions with knowledge of the likely consequences. He has refused to purge his contempt despite having opportunities to do so. The respondent did not dispute that a sentence of imprisonment was appropriate, but submitted that it should be for a fixed term. The applicant submitted that the respondent should be imprisoned until further order.
32 The respondent is presently in custody. I was told from the bar table that he is being prosecuted by the Commonwealth for offences under the Crimes Act 1914 (Cth). Some of the matters have been set for trial, while with respect to other counts in the Information, he has pleaded guilty. I was also told by his counsel that the offences were such that they would, in the normal course of events, attract an immediate term of imprisonment.
33 As I understand it, the respondent is presently in custody awaiting a trial with respect to certain charges and sentencing with respect to offences to which he has pleaded guilty. The applicant submits, correctly in my view, that there is no reason why I should not proceed to deal with the six acts of contempt and make an order for the imprisonment of the respondent if that be the appropriate order. The applicant submits that there is no suggestion or any evidence to the effect that the respondent is currently serving a sentence of imprisonment for an offence for which he has been convicted. No occasion arises to consider the commencement date for committal to prison for contempt of the ACIC. The respondent is already in custody and any order for imprisonment by this Court will take effect from the moment it is pronounced. The applicant submits, again correctly in my view, that it is ultimately a matter for any sentencing judge in a State Court to determine the relationship between an order of this Court for the imprisonment of the respondent and the commencement date for any subsequent sentence imposed by the State Court. That appears to be the effect of s 93(a) of the Sentencing Act 2017 (SA) assuming it applies to this Court. Section 93 is in the following terms:
93—Effect of imprisonment for contempt
If a person is imprisoned for contempt of court—
(a) any sentence of imprisonment that the person has not yet begun to serve (and any non-parole period in respect of that sentence) will not commence until the expiry of the period of imprisonment for contempt; and
(b) any sentence of imprisonment that the person is then serving (and any non-parole period in respect of that sentence) ceases to run for the period of imprisonment for contempt.
34 I note that the respondent did not put any argument that his present incarceration means that an order that he be imprisoned indefinitely should not be made because it would not operate in any way to coerce him to purge his contempt.
35 In Hannaford v HH, Dodds-Streeton J dealt with a respondent who was already in custody at the time her Honour sentenced him for acts of contempt under the Act. Her Honour said (at [61]):
The respondent’s custody on remand in relation to a number of charges could coincide with any term of imprisonment ordered in relation to the respondent’s contempt. An order for imprisonment for the contempt would, however, constitute an independent basis for detention, irrespective of the outcome of the other charges. Further, it would deprive the respondent of the subtraction of pre-sentence detention from any term imposed in relation to the charges he faced, should they be subsequently proved. While the outcome of the respondent’s trial on the other charges was as yet unknown, I considered that the potential loss of a reduction of any term of imprisonment ultimately imposed could constitute an incentive for his co-operation.
36 In the circumstances, including the absence of a submission to the contrary, I proceed on the basis that the respondent’s present incarceration does not mean that an order for imprisonment until further order will not act as an incentive for the respondent’s cooperation.
37 The respondent submitted that a fixed term of imprisonment rather than imprisonment until further order was appropriate primarily on the basis that there was no urgency “related to the investigation”. He referred to the fact that he was arrested on [REDACTED]. The respondent was summonsed on 31 August 2020 for an examination on 10 September 2020. The applicant brought this proceeding on 18 November 2020.
38 The respondent referred to Anderson v BYF19 [2019] FCA 1959 where Abraham J said (at [68]):
However, there has been some delay in this matter. Despite being arrested in possession of the money and being charged with a substantive offence at that time, it was [REDACTED] months before the respondent was summonsed to give evidence. It took a further [REDACTED] months to institute these proceedings after the contempt had been committed. It appears that there has been no particular urgency in obtaining the information. The respondent submitted that this can be contrasted to cases like DKH18 in which an indeterminate sentence was imposed, and the timeline of events leading to the application at the Federal Court was significantly shorter. The contention being, that “there must be something to be said” for the fact that the intelligence sought by the ACIC in this instance, would now be at least a year and a half old. While the applicant submitted the answers are still relevant, the length of time may well have lessened their significance, particularly in a context where those with whom the respondent dealt are well aware of the money being seized. I note that delay alone will not necessarily render the information sought by the ACIC irrelevant. For example, in Sage (No 2), the relevant examinations took place a year prior to the respondent being sentenced to an indefinite period for contempt in this Court: see Sage v ZZ [2015] FCA 417.
39 In the result in that case, her Honour fixed a term of imprisonment rather than imposing a sentence of indefinite duration. Her Honour said (at [83]–[85]):
83 That said, on the evidence the respondent had made his decision not to purge, regardless of the consequences, which might make it less likely that an indeterminate sentence would coerce him to answer the questions. As noted above, there was a delay in summonsing the respondent to give evidence, which for the reasons I have given, reflects on the urgency of obtaining the information and its potential significance. Given the nature of the events and specific information sought in this case, it is a factor that must be considered when determining the appropriateness of an indefinite sentence.
84 I have taken into account all the submissions put by the applicant and respondent.
85 Having taken into account all relevant matters I sentence you to a term of imprisonment for 8 months to be released after serving 4 months on the basis that the remainder of the sentence is suspended on the basis you are of good behaviour for a period of two years.
40 Von Doussa v Owens (No 3) (1982) 31 SASR 116 was a case involving the continuing refusal of a witness to answer questions put to him by an inspector under the Securities Industry (South Australia) Code. Chief Justice King made three important points about the obligation to answer questions under Statute and the seriousness of a failure to comply with that obligation. First, his Honour said that such an obligation cannot be overridden by private undertakings. Secondly, his Honour said that the contemnor’s refusal to answer questions was serious because it involved a refusal to cooperate with an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. Finally, the contemnor’s continuing disobedience left the Court with no alternative, but to continue his imprisonment.
41 I am not persuaded by the respondent’s argument. It seems to me that a sentence of imprisonment until further order is appropriate. In my opinion, this case is similar to the case of Hannaford v HH in which Dodds-Streeton J said (at [60]):
In the present case, the relevant information is still keenly sought by the ACC. The respondent made no statements to his future intentions and there was no evidence to establish that he would not subsequently be induced to re-evaluate his approach and answer the specified questions.
42 Yesterday afternoon, and after I had written these reasons, my chambers received an email from the solicitor for the respondent, Mr N Vadasz, in which he stated that he had been advised by his client that the Court was not provided with an explanation for his contempt. Mr Vadasz then stated that he had been asked to provide the following explanation. The respondent is charged with an importation offence involving the delivery of a prohibited import to the home address of his parents. He is also charged with importation offences taking place after his arrest and which are said to involve an intended delivery to his parents’ address. These charges are “set, in part,” for trial in the District Court of South Australia in 2022. The respondent’s parents live at the address. In addition, two young children of the respondent’s two siblings stay overnight at the parents’ address from time to time. The respondent’s concern is for the safety of his immediate family and hence his refusal to answer any questions.
43 It is too late to make this submission, particularly as I raised this issue at the penalty hearing (see at [27] above and Kimber v The Owners Strata Plan No. 48216 (No 2) [2018] FCAFC 58 (Kimber) at [12]). In any event, the submission does not avail the respondent.
44 It will be noted that this explanation is given by the respondent’s counsel and is not the subject of affidavit evidence from the respondent. Furthermore, at best, it identifies a generalised fear. This late development does not prompt me to alter the conclusions set out in these reasons. In reaching this conclusion, I follow the observations made by judges of this Court in previous cases including Anderson v DKH18 at [50]–[56] per White J and Lusty v CRA20 [2020] FCA 1737 at [45]–[46] where Abraham J said the following:
45 It is well established that fear of retribution will rarely be given mitigatory weight: GPY18 at [31] citing R v Drever [2010] SASCFC 27 at [24] and Allbeury at [42]-[43]; Hannaford (No. 2) at [33]; BFY19 at [58]-[61]. This is because the exercise of such powers as possessed by the ACIC to facilitate the investigation of matters of this nature would be significantly impeded if mitigating weight were to be given to an assertion of fear of retribution as a reason for refusing to provide information.
46 This fear expressed was no more than a generalised fear. There is no evidence of any specific threat having been made to either the respondent or his family. That was so at the time of the questioning and continues to be the case at the time of sentence. It is based on what is really seen to be inherent in being involved with criminal activity of the type being investigated: BFY19 at [63]. As was the case in GPY18 and Hannaford (No 2) and BFY19, the respondent offers no more than a generalised fear which, in the assessment of mitigation, cannot be given any real weight.
45 This morning, Mr Vadasz for the respondent sought to make further submissions. He sought to distinguish between the circumstances in Kimber and the circumstances in this case. Furthermore, he sought to identify constraints on the ability of the respondent and his legal representatives to communicate with each other. I heard Mr Vadasz to the conclusion of his submissions. He did not seek to advance any evidence in support of his submissions. Nothing he said dissuaded me from proceeding to make the orders I had previously foreshadowed. Even if it is appropriate for me to take into account further submissions, those submissions are the submissions set out in [42] above and, for the reasons already stated, those submissions do not avail the respondent.
46 I make the orders sought by the applicant. It is appropriate to give the parties liberty to apply because, in the event that the respondent purges his contempt, there will be the opportunity for the continuation of the respondent’s imprisonment to be reviewed (Anderson v DKH18 at [80]).
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. |
