Federal Court of Australia
Lusty v CVA22 [2023] FCA 130
ORDERS
| ||
DAVID LUSTY AN EXAMINER APPOINTED UNDER SECTION 46B OF THE AUSTRALIAN CRIME COMMISSION ACT 2002 Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
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):
(a) The reasons for judgment not be published and not be made available to any person other than a party to the proceeding or their legal representatives otherwise than pursuant to an order of a judge of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.
(b) 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).
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 addition, an examinee who is a member of an organised crime group and has been charged with an offence will hold a significant amount of information about the contemporary activities, operations and practices of the organised criminal group, the value of which will be almost entirely lost if examinations cannot occur until all charges against the person are resolved.
11 The ACC Act was amended to confer express statutory authority for an examiner to conduct a “a post-charge examination”: s 24A(2)(a).
12 Section 28(1)(c) requires the examiner to be satisfied that issuing the summons is reasonable in all the circumstances; and, in the case of a post-charge summons that it is reasonably necessary for the purposes of the relevant special ACIC investigation even though the person has been charged or the charge is imminent: s 28(1)(d).
13 A summons to appear at an examination must be accompanied by a copy of the relevant instrument of the Board recording the determination and authorisation that the investigation is a special ACIC investigation: s 28(2).
14 By s 34A(a)(ii) of the ACC Act, a person is in contempt of the ACIC if they refuse or fail to answer a question that they are required to answer when appearing as a witness at an examination before an examiner.
15 If an examiner forms the opinion that a person is in contempt, the examiner may apply to this Court to be dealt with in relation to the contempt: s 34B(1). Before the application is made, the examiner must inform the person that the examiner proposes to make the application: s 34B(2). The application must be accompanied by a certificate which states the grounds for making the application and the evidence in support of the application: s 34B(3). A copy of the certificate must be given to the person before, or at the same time as, the application is made: s 34B(4). If, after doing the matters identified in s 34B(5), this Court finds that the person was in contempt of the ACIC, the Court may deal with the person as if the acts or omissions involved constituted contempt of this Court: s 34B(5). Section 34B(5) provides:
34B Federal Court or Supreme Court to deal with contempt
(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.
16 Section 34B(6) provides:
(6) For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the Criminal Code applies as if:
(a) contempt of the ACC were an offence; and
(b) references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.
BACKGROUND FACTS
17 CVA22 was arrested on [REDACTED]. He was ultimately charged with the following offences:
[REDACTED];
[REDACTED];
[REDACTED]; and
[REDACTED].
18 Bail was refused and CVA22 has been remanded in custody since his arrest. CVA22’s matter remains before the Local Court where committal hearings are expected to proceed in [REDACTED] and [REDACTED]. It is anticipated that the trial will not be heard until late 2024 or early 2025.
19 On [REDACTED], the applicant issued a summons pursuant to s 28 of the AAC Act which required the respondent to appear before the ACIC for examination on [REDACTED] (the First Examination).
20 The summons was issued for the purposes of a special operation being undertaken by the ACIC, namely the High Risk and Emerging Drugs 2020 Special ACIC Operation authorised by the Special ACIC Operation Determination (High Risk and Emerging Drugs) 2020, dated 28 July 2020. In making the Determination, the Board of the ACIC (including the heads of all Australian police forces) determined that “it is in the public interest that the Board authorise the Special ACIC Operation”, being “an intelligence operation relating to specified criminal activity”. In doing so, the Board contemplated that it was necessary for the ACIC to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”.
21 Paragraph 2 of the summons recorded that the examiner was, in accordance with s 28(1)(d)(i) of the AAC Act, “satisfied that it was reasonably necessary for the purposes of the ACIC operation” to examine CVA22 “even though [he had] been charged with related offences”.
22 Before the commencement of the examination, the examiner made a Confidentiality Direction pursuant to s 25A(9) of the AAC Act. The Direction prohibited disclosure of the evidence given by CVA22 at the examination to any person involved in his prosecution, including for any “related offence” (as defined in s 4 of the ACC Act) in respect of the examination. The Direction further prohibited the use of such evidence for the purpose of any such prosecution.
23 CVA22 attended the First Examination on [REDACTED] accompanied by his legal representatives Mr Strickland SC and Mr Tsavdaridis. CVA22 was advised by the applicant (the examiner) that he could raise any matters he wished before the commencement of the examination and that adjournments would be granted to allow him to speak with his counsel. The examiner explained that the purpose of the examination was “completely separate” from current criminal proceedings against him and was not being undertaken for the purpose of assisting or bolstering any current criminal proceedings against him. CVA22 was advised that the examination was being conducted in private with only members of the staff of the ACIC present, none of whom were involved in any of the current criminal proceedings against him. The examiner explained that the ACIC would treat the CVA22’s evidence as confidential, including because of the terms in the Direction. The examiner outlined the obligations of ACIC examination witnesses under the ACC Act, including the obligation to answer all questions truthfully even if doing so might incriminate the person or show that the person had committed an offence. The examiner gave CVA22 a ‘blanket’ or ‘automatic’ protection against self-incrimination under s 30(5) of the ACC Act and explained the effect of this protection. After the examiner’s opening remarks, CVA22 was granted an adjournment to speak to his legal representatives in private.
24 After the adjournment, Mr Strickland SC informed the examiner that CVA22 would answer all questions except those relating to matters pertaining to the current criminal charges against him. Mr Strickland SC advised that CVA22’s criminal proceeding was listed for a case conference in the week after the First Examination. It was agreed that the First Examination would proceed to the extent possible without covering the subject matter of CVA22’s charges, and that the rest of the examination would be adjourned until after the case conference.
25 During the First Examination, CVA22 was asked and answered questions related to his companies, financial situation, family and associates. CVA22 willingly answered all questions put to him by the examiner, except for those questions related to the charges. The examination was adjourned to [REDACTED].
26 On [REDACTED], CVA22 made an application in the NSW Local Court pursuant to s 82 of the Criminal Procedure Act 1986 (NSW) (Section 82 Application) [REDACTED].
27 On [REDACTED], CVA22 and his legal representatives attended the Second Examination, which commenced at 10:45am. The examiner informed CVA22 that the safeguards and protections outlined in the First Examination would continue to apply in the Second Examination.
28 Mr Strickland SC informed the examiner that CVA22 would not answer any questions relating to the charges he was facing, on the basis that CVA22 felt answering such questions before trial would create a “real, not just fanciful, prejudice to him”. Mr Strickland SC also informed the examiner that CVA22 had made the Section 82 Application in the NSW Local Court. Mr Strickland SC submitted that CVA22’s refusal to answer questions related to his charges was based on the principles that arose in the decision of X7. He submitted that “once a person charged with offences gives evidence related to those offences, in practical terms he is committed to the course of action or is committed to the evidence that he gives in relation to those charges, irrespective of the fact that the evidence cannot be directly used against him” in the prosecution of those criminal charges.
29 The examiner:
(a) told CVA22 and Mr Strickland SC that the Australian Parliament had expressly authorised him to conduct the post-charge examination and that amendments to the legislation were expressly passed to address and reverse the effect of X7;
(b) again told CVA22 that the examination was completely separate to the current criminal proceedings and CVA22 had the benefit of protections available under the ACC Act and the benefit of the Direction which the examiner had previously made;
(c) stated that the purpose of the examination was not to bolster or assist the current criminal prosecution against CVA22, but rather it was for the ACIC to obtain important information about broader activities, including in relation to current and “even future” planned criminal activities;
(d) stated that he would require CVA22 to answer questions related to the existing criminal charges against him and that a refusal to answer would be a contempt punishable by imprisonment, potentially for a indefinite period.
30 Mr Strickland SC confirmed that CVA22 would refuse to answer “all questions which relate directly or indirectly to the respondent’s criminal proceedings”.
31 The examiner asked CVA22 seven questions which he refused to answer, each of which the examiner required CVA22 to answer. The examiner advised CVA22 that each of the questions was relevant to the Special ACIC Operation. CVA22 confirmed that he understood this and still intended to refuse to answer the questions.
32 In summary, the seven questions were as follows:
(1) Do you know anyone that has been involved in the manufacture or trafficking of methamphetamine or MDMA? Who are they?
(2) Do you know anyone who has possessed cash that is proceeds or instruments of illegal drug activities?
(3) Do you know anyone who has used a communication device, such as a mobile phone,[REDACTED] ?
(4) What is the nature of your relationship and past activities with [REDACTED]?
(5) What is the nature of your relationship and past activities with [REDACTED]?
(6) What is the nature of your relationship and past activities with [REDACTED]?
(7) What is the nature of your relationship and past activities with [REDACTED]?
33 After CVA22 refused to answer the seven questions, the examiner stated that he proposed to make an application under s 34B of the ACC Act for CVA22 to be dealt with for his contempt. The examiner then granted a short adjournment for CVA22 to reconsider his position. Upon resumption, Mr Strickland SC indicated that there was nothing further he or his client wished to say. The Second Examination was adjourned at 11:43am.
34 CVA22 has not been discharged from compliance with the summons. The ACIC continues to believe that CVA22 can provide information that is relevant to the Special ACIC Operation which is ongoing and still wants answers to the questions which had been put.
35 The ACIC states that it also seeks answers to other questions. Whatever these questions might be, they have not apparently yet been asked and there has not been any direct refusal to answer those questions.
36 On 29 July 2022, the applicant’s solicitors wrote to CVA22 asking if he wished to purge his contempt. The contempt has not been purged. As previously mentioned, these proceedings were commenced by the ACIC on 10 August 2022.
SENTENCING PRINCIPLES
37 In Australian Crime Commission v DTO21 [2022] FCA 288, I summarised a number of the principles in the following way:
[29] The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions in proceedings, whether those proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers: Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 117-8 (King CJ, Zelling and Wells JJ agreeing), referred to by White J in the present context in Anderson v DKH18 [2018] FCA 1571 at [24].
[30] The statutory scheme recognises that answers are sought by the ACIC in the public interest, for the protection of the community, and in circumstances where prompt answers are often highly desirable. The scheme has, as a principal object, 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”: Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366 at [57]-[59] (Dodds-Streeton J); Anderson v DKH18 [2018] FCA 1571 at [26]-[28].
[31] In Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [49], White J observed that “[a] principal purpose of the enactment of ss 34A-34F was to provide the ACC with a means of dealing with uncooperative witnesses which was quicker than the conventional prosecution process”. His Honour referred to the explanatory memorandum for the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) in which the Minister said:
Allowing an examiner to refer a person to a Court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses as contempt proceedings bring with them the threat of immediate detention. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention.
[32] His Honour then stated at [49(2)]:
The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: Wood v Galea (1995) 79 A Crim R 567 at 571; Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118; Hannaford v HH [2010] FCA 1214, (2010) 205 A Crim R 366 at [39];
[33] In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, Dunford J identified considerations relevant to sentencing for criminal contempt as including:
(1) the seriousness of the contempt proved;
(2) whether the contemnor was aware of the consequences to himself of what he did;
(3) the actual consequences of the contempt on the relevant trial or inquiry;
(4) whether the contempt was committed in the context of serious crime;
(5) the reason for the contempt;
(6) whether the contemnor has received any benefit by indicating an intention to give evidence;
(7) whether there has been any apology or public expression of contrition;
(8) the character and antecedents of the contemnor;
(9) general and personal deterrence; and
(10) denunciation of the contempt.
38 As mentioned in DTO21 at [37], imprisonment for an indefinite period will often be appropriate because of the importance of the element of coercion, but there are circumstances where it will be inappropriate:
It has been observed that, because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: Wood v Galea (1995) 79 A Crim R 567 at 573; Von Doussa v Owens (No 3); Hannaford v HH at [60]-[63]; Royal Commissioner v Staunton (unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) at [26]-[27]; XLVII at [49(4)]; CRA20 at [34]. Indeterminate detention is inappropriate if the person has purged his or her contempt or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: Wood v Galea at 573; XLVII at [49(5)].
CONSIDERATION
39 It is convenient to address the issues by reference to the considerations identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183, recognising that these considerations may or may not be relevant in a particular matter and are neither prescriptive nor exhaustive.
The seriousness, and awareness of consequences, of the contempt
40 The applicant characterises CVA22’s contempt as deliberate, repeated and serious, taking place in the context of a special ACIC operation which sought to gather information and intelligence on high risk and emerging drugs.
41 The applicant relied upon the observation made by Abraham J in Lusty v CRA20 [2020] FCA 1737 at [41] to the effect that a refusal to answer questions undercuts the effectiveness of the statutory scheme which authorises compulsory examinations, particularly in investigations of significant importance to the community such as illicit drug use and supply.
42 CVA22 contended that the seriousness of the contempt is reduced by the fact that he answered all of the examiner’s questions regarding matters that were not connected to his pending criminal charges. As I said in DTO21 at [39], this submission says “little more than [that the respondent] acted in accordance with his legal obligation to answer the questions”.
43 CVA22 also argued that the contempt was “limited” (which I understood to mean that the seriousness of it was reduced) by the fact that the applicant was on notice of CVA22’s position from the outset. I do not accept this submission. The fact that CVA22 indicated in advance that he proposed in the future to refuse to answer any questions related to the criminal proceedings does not downgrade the seriousness of the contempt.
44 The applicant submitted that CVA22 was aware of the consequences of his actions at the time he committed each of the instances of contempt. I accept this submission. The examiner informed CVA22 of the consequences of a refusal to answer. CVA22 was represented at both examinations by a solicitor and senior counsel. He was provided with an opportunity to obtain advice and he received advice. Over the course of the First and Second Examination, the examiner advised CVA22 numerous times that if he failed to answer the questions that he would be in contempt of the ACIC, which was punishable by imprisonment, potentially for an indefinite period. CVA22 acknowledged in his letter of apology dated 11 November 2022 that he “was told if I don’t answer the questions I will get an indefinite gaol sentence”.
45 CVA22 has refused to purge his contempt despite having the opportunity to do so. I am satisfied that CVA22’s contempt is serious and that he was aware of the consequences of the contempt.
The consequences of the contempt on the inquiry
46 CVA22 submitted that the consequences of his contempt were minor and that the information sought from him during the examination was available to the applicant from alternative sources, namely the Australian Federal Police and the ACIC’s own operatives.
47 The applicant contends that the information sought was of material relevance to the Special ACIC Operation and that ACIC was unable to ascertain the answers to the questions by alternative means. The affidavit of Mr Halls sworn on 23 November 2022 sets out at [12] to [15]:
12. CVA22’s contempt of the ACIC continues to prevent the ACIC from obtaining information and intelligence for the purposes of its High Risk and Emerging Drugs 2020 Special Operation as authorised by the Special Australian Criminal Intelligence Commission Operation Determination (High Risk and Emerging Drugs) 2020.
13. The ACIC is not merely seeking information from CVA22 relating to the particular alleged historical offending with which he is charged. As indicated in my affidavit sworn on 29 September 2022 in these proceedings (my first affidavit), it is anticipated that CVA22 has information about members of domestic and transnational serious organised crime groups involved in illicit drug manufacturing and the trafficking of border-controlled drugs. It is believed that the criminal network which CVA22 is alleged to be part of continues to be active despite some recent arrests and it is anticipated that CVA22 has important knowledge of the modus operandi employed relevant to future planned importations. As a result of CVA22’s refusal to answer questions relating to the matters with which he is currently charged, including but not limited to the seven questions which he refused to answer, the ACIC has been unable to obtain the information which it is believed CVA22 has which would likely advance the objectives of the special ACIC operation under which the examination was conducted.
14. It is not the case that the ACIC exhausted all of the questioning of CVA22 other than the seven questions he refused to answer. As indicated in my first affidavit, I am aware that further areas were intended to be explored with CVA22 that went beyond the seven questions that CVA22 refused to answer. These questions cannot be asked until CVA22 agrees to answer questions of a nature similar to the seven questions he refused to answer. For operational reasons, I am unable to disclose the precise questions which were intended to be put to CVA22 had he agreed to answer the seven questions which he refused to answer.
48 It is not surprising that the applicant’s evidence does not “spell out the significance of the information sought, or the specific use to which it might be put”: CFS22 at [37]. On the other hand, however, it is not the case that the refusal to answer the questions “continues to prevent the ACIC from obtaining information and intelligence for the purposes of its High Risk and Emerging Drugs 2020 Special Operation”. The refusal prevents answers being obtained to the questions asked from CVA22 and other questions founded upon answers to those questions.
49 Mr Halls was cross-examined. The net effect of the cross examination, when read with the material to which he was referred, was that the AFP already had significant information available to it which has gathered from [REDACTED] the subject of Operation [REDACTED]. That does not mean that CVA22 did not and does not have information of which the ACIC or the AFP is not aware. It is clear that there is information which the ACIC and AFP do not have, including [REDACTED]. Further, as should be obvious, not all information is conveyed by mobile phones or devices which have been monitored. I accept that CVA22 is likely to have significant information which has been kept from the ACIC as a direct consequence of his refusal to answer the questions. The fact that there is some information available to the ACIC is relevant to the degree of importance that the refusal to answer has to the investigation. The evidence does not establish that CVA22’s evidence in relation to the seven questions is critical to the inquiry, albeit that his evidence “would likely advance the objectives of the special ACIC operation”.
Whether the contempt was committed in the context of serious crime
50 It was not relevantly in contest that the contempt was committed in the context of serious crime.
The reason for the contempt
51 CVA22 submitted that the reason for his contempt was twofold: (1) he was concerned about his trial being prejudiced as a result of his questioning; and (2) he fears reprisals if others come to believe that he has provided information to authorities.
52 As to the first matter, as noted earlier, CVA22’s then counsel cited concerns of prejudice to the ongoing criminal trial by reference to the principles in X7 during his examination before the ACIC. The written submissions filed for CVA22 in respect of this hearing contended:
The respondent’s concerns of prejudice to his trial are based on the highly unusual circumstance where ACIC operatives are witnesses in the proceedings currently pending. The fact that ACIC members were conducting surveillance of the respondent’s co-accused would infer the applicant was part of the broader investigation, not limited to surveillance activity but the overall investigation. Including the provision of intelligence. Such a circumstance raises the unfairness concluded in X7 and it is difficult to accept that the legislative imprimatur to question an examinee post charge would have permitted questioning in circumstances when ACIC is part of the prosecuting authority.
53 In his letter of apology, CVA22 referred to concern about the potential access to ACIC evidence by the Crown. This included:
I know that ACIC say that anything that I say will be offered [immunity] but I have heard of cases where the Crown or legal team have [subpoenaed] crime commission statements and they have been granted.
54 CVA22 did not make an affidavit or make himself available for cross-examination. His letter of apology was admitted over objection, but its weight is diminished by the matters just mentioned.
55 The applicant reiterated the comments of the Examiner in the Second Examination, that amendments to the ACC Act following the High Court decision of X7 now expressly authorise the examiner to conduct post charge examinations. The applicant also referred to the fact that CVA22 has the benefits of the strict confidentiality direction made by the examiner to prevent the evidence given at an examination being disclosed to anyone involved or proposed to be involved in the current criminal proceedings against the respondent.
56 On 23 November 2022, the applicant filed a further affidavit of Mr Halls who is employed by the ACIC as the National Manager: Examinations. In response to CVA22’s concerns regarding the risk of prejudice to a fair criminal trial, Mr Halls stated at [7] to [11]:
[7] Operation [REDACTED] was an operation run by the Australian Federal Police (AFP) [REDACTED]. It was not an ACIC operation and the ACIC does not have immediate and automatic access to investigation material obtained under Operation [REDACTED]. The ACIC has received Operation [REDACTED] material from the AFP from time to time where the AFP has lawfully disclosed such material to the ACIC, however it is not the case that ACIC is aware of all the investigation material. In addition, the ACIC does not hold a copy of the relevant briefs of evidence in prosecutions arising from Operation [REDACTED].
[8] The ACIC officers whose witness statements and evidence are attached as Annexures AL-11 to AL-14 of the affidavit of Aisha Lopez sworn on 13 November 2022 (Lopez affidavit) assisted in the resolution of Operation [REDACTED], an AFP investigation commenced in [REDACTED] targeting a transnational serious and organised crime syndicate involved in drug importation and drug trafficking. To the extent identified in the statements at Annexure AL-11 those ACIC Officers assisted in providing surveillance between [REDACTED] and [REDACTED]. The ACIC officers whose statements are Annexures AL-13 and AL-14 provided assistance by attending the execution of a search warrant on [REDACTED] at the residence of [REDACTED].
[9] Each of the ACIC officers whose statements are annexed at AL-11 (and whose observations are contained in the surveillance reports at AL-12), AL-13 and AL-14 were acting in their capacity as a Special Member of the AFP in support of the AFP investigation codenamed Operation [REDACTED]. The assistance provided by the ACIC in the resolution phase of AFP [REDACTED] was at the direction of the AFP and those ACIC officers were not independently investigating CVA22 or his co-accused. None of the ACIC officers referenced in the preceding paragraph has had any involvement in the prosecution of CVA22’s outstanding charges, apart from the extent (if any) to which the provision of their witness statements to the AFP is regarded as such involvement. As far as I am aware, it is not proposed that any of them will have any involvement in that prosecution in the future, apart from providing evidence about the matters referred to in their witness statements if and when any of them is actually required to so in that prosecution.
[10] None of those ACIC officers were authorised to attend the examination of CVA22 on [REDACTED] and [REDACTED]. I have examined the Authority to Attend (ATA) for each examination and the Examination Viewing Attendance Log and those documents indicate that none of the ACIC officers whose statements are at Annexures AL-11 to AL-14 attended or otherwise participated in those examinations. None of the ACIC officers have accessed or received any evidence provided by CVA22 at those examinations.
[11] The Applicant made an Examiner Confidentiality Direction that, among other things, prohibits disclosure of evidence provided by CVA22 at his examination to any person involved, or proposed to be involved, in the current criminal prosecution against CVA22.
57 I am satisfied that the practices adopted by the ACIC as set out in Mr Hall’s affidavit show that the ACIC is aware of the risk of prejudice and has taken steps to seek to eliminate the risk, including by ensuring that any ACIC officers involved, or proposed to be involved, in the criminal prosecution against CVA22 are not authorised to be involved in the ACIC investigation of CVA22.
58 I do not conclude that CVA22 was aware at [REDACTED] about the involvement of ACIC officers in support of the AFP’s Operation [REDACTED] investigation in their capacity as a Special Member of the AFP. The evidence did not establish that he was.
59 I am nevertheless satisfied that CVA22 had, and continues to have, a genuine concern that in one way or another, information provided to the ACIC by CVA22 might be obtained by other authorities for use in his criminal prosecution and that this was a part of his concern on [REDACTED] informing his decision not to answer questions.
60 As to the second matter, CVA22’s asserted fears for safety and concern of reprisals by co-accused and inmates if they suspected he had divulged information to the ACIC were outlined by CVA22 in his letter of apology and found substantial support in the expert report of Ms Shannon Burgess.
61 CVA22 referred to the decision by Bromwich J in CFS22 in which his Honour imposed a fixed sentence in relation to a respondent who had expressed fears which, “while not specific in referring to any direct threat having been made, were not generalised either”. His Honour concluded that the “fears were genuine and rational” and thereby acted to mitigate the seriousness of the non-compliance: at [4] and [45]. His Honour has earlier referred to DTO21 at [62], where I made the following observation:
The respondent’s fear was expressed in general terms. There is no evidence of any specific threat and the evidence does not enable any reliable assessment of whether the fear is well founded. The examination was held in private and only ACIC staff were present. There are, of course, risks which are inherent in being involved in criminal activity of the type being investigated: CRA20 at [46]; BYF19 at [63]. This factor is not ordinarily given significant weight where the fear is disputed and the evidence does not enable a reliable assessment of whether the fear is well founded: R v Drever [2010] SASCFC 27 at [24]; Corruption and Crime Commission v Allbeury(No 2) [2011] WASC 26; (2011) 205 A Crim R 386 at [42] –[43]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 at [33]; BYF19 at [58]–[61]; GPY18 at [31]; CRA20 at [45]. Notwithstanding, I accept that the reason for refusing to answer was that the respondent was afraid of possible repercussions to him and his family. This necessarily has a bearing on moral culpability. He did not, for example, obdurately refuse to answer without any reason or for the sole purpose of flouting authority.
62 A difficulty for CVA22 is that he did not give evidence and was not cross-examined. A further difficulty, as the applicant submitted, is that, at the time of the examinations, CVA22 did not refer to fear as a reason for not answering questions. Rather, his reliance was on the prejudice to his criminal proceedings. CVA22 was asked by the applicant on [REDACTED], in relation to each of the questions the subject of the charge, if there was any other reason why he refused to answer and CVA22 said there was not. CVA22 did not otherwise give fear of reprisals as a reason for refusing to answer questions at either the First or Second Examinations.
63 In R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], Smart AJ said:
[58] There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
[59] There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
64 In R v Sara [2020] NSWCCA 119 at [109], Harrison J (with whom Bathurst CJ and Hoeben CJ at CL agreed) characterised Qutami as being “concerned with subverting the fact-finding process by attempting to rely for their truth upon unsworn statements given to experts” and noted that, in the case before the Court there was no real dispute about the relevant underlying facts, in that case, that “Mr Sara served his remand in maximum security conditions, that his marriage broke down and that his mother had mental difficulties during his time on remand”.
65 Ms Burgess gave the following evidence in her report:
[REDACTED] identified his next experience of anxiety came after being summoned to provide information to ACIC. Namely, [REDACTED] described having an intense fear for his safety and identified experiencing hypervigilance, a racing heart, sweating, and fears regarding his safety. These symptoms were reportedly triggered by inmates questioning his whereabouts after he had been taken to the ACIC building and following his return to [REDACTED]. [REDACTED] denied any other episodes of anxiety or depression.
…
[REDACTED] noted further concerns in regards to confidentiality, after his first examination on [REDACTED] (confirmed in the originating documents). [REDACTED] described being taken from [REDACTED] and being gone for a number of hours. He stated that a number of other inmates witnessed his leaving [REDACTED] and returning hours later. [REDACTED] identified that his leaving the facility drew a significant level of attention from other inmates, due to the COVID-19 restrictions that were in place at the time. He stated that it was rare for individuals to enter or leave the facility, and as such, inmates were acutely aware of the “comings and goings” taking place at the time. [REDACTED] stated that the inmates were suspicious as to why he was granted permission to leave [REDACTED], given the restrictions, and subsequently [REDACTED] described being threatened and called “a dog” by various inmates. This created a significant level of anxiety and concern to [REDACTED] as he believed his life could be in jeopardy if other inmates believed he was acting as an informant to the police.
[REDACTED] stated that the examiner had communicated assurances regarding confidentiality, safeguards, and protections, however, he identified being alone in [REDACTED], housed with three (3) other men, and in an environment where “people don’t take too kindly to informants”.
[REDACTED] reported that it took some time for the rumours and suspicions regarding him to “settle down”, and that during the time between the first and second examination, he had been extremely fearful for his safety. He stated that “everyone knows everyone” at [REDACTED], and while he was promised confidentiality, he was concerned that other inmates would put the information together regarding his excursions away from [REDACTED], and realise that he had provided information to ACIC. [REDACTED] also stated that he was aware of information contained in briefs whereby individuals had provided evidence confidentially and while their name had been withheld, the information they provided enabled identification. Subsequently, he became concerned with the possibility that he would be identified as having provided evidence against someone, and that his life would be in jeopardy.
[REDACTED] further stated that in his brief, there was mention of individuals plotting to kidnap and kill his co-accused as well as the mention of a “hit team being on standby”. He noted that he is “not a hardened criminal” and that he is not physically (or in any other capacity) equipped to deal with individuals of this nature. Subsequently, [REDACTED] stated that he considered his options and ultimately determined that providing information to ACIC “is not worth my life”. He believed that he would have been killed for giving information, if the individuals he provided evidence against (or his fellow inmates at [REDACTED]) came to know that it was him. Subsequently, he had made a decision to refrain from giving further information to ACIC during the second examination on [REDACTED], which pertained to specific information against individuals. [REDACTED] described it as a “lose-lose” situation, and reported making the choice to preserve his life, and accept the possibility of receiving more jail time.
66 In cross-examination, Ms Burgess explained that CVA22’s fears grew over time such that, at some time between the First and Second Examinations, he developed an Acute Stress Disorder. Her opinion was that there was a direct nexus between the offences and the Acute Stress Disorder in that CVA22 “was motivated to minimise the acute stress response through self-preservation”.
67 CVA22 also pointed to the content of certain text messages, to which reference was made during the hearing, which were contained in material provided to CVA22 by the prosecution in relation to CVA22’s criminal matter. Whilst this proposition was disputed by the applicant, I accept that the text messages were capable of being reasonably understood as indicating that the authors of some of them were prepared to deprive people of their liberty and cause serious harm. The applicant stated that there was no evidence that CVA22 was aware of this material at the time he refused to answer questions on [REDACTED].
68 The material was referred to by CVA22 to Ms Burgess as she reported in the last paragraph extracted from her report above. Ms Burgess appears to have understood that the material had been read by CVA22 before a decision was made by CVA22 to refuse to answer the questions on [REDACTED]. Evidence could have been adduced by the respondent as to when the prosecution material was obtained, but no such evidence was adduced.
69 I approach this aspect of the case with caution given the lack of direct sworn evidence by CVA22 and the fact that CVA22 did not state that his refusal to answer questions was motivated in part by fear when answering questions at the Second Examination.
70 Nevertheless, having had the benefit of hearing her answers in cross-examination, I accept the evidence of Ms Burgess that CVA22 developed an Acute Stress Disorder and that his offences on [REDACTED] were linked to that disorder in the way she described.
71 I am satisfied that, at the time of the offences (namely the Second Examination), CVA22 was genuinely afraid of reprisals and that, whether or not reprisals were or are likely, his fear was real and based on his experiences, knowledge and thought processes. There was no evidence of a specific threat to him, but there was evidence from which it is reasonable to conclude that, if persons did come to know (or believe) that CVA22 had assisted the authorities, reprisals would be a real possibility. I refer in this regard in particular to CVA22’s experiences in jail as reported by Ms Burgess.
72 It is also beyond doubt that CVA22 is now aware of the material contained in the prosecution brief, to which reference has been made, and I accept that this informs his stated position that he will not purge his contempt.
73 In summary, I accept that CVA22 had genuine and rational fears. I accept that this was a reason why he refused to answer questions and was prepared to commit the contempt notwithstanding that he knew his contempt would likely result in detention, possibly including indefinite detention. I also accept that his fears are ongoing. I take this into account in considering his culpability, the likelihood of CVA22 deciding to purge his contempt and an appropriate sentence.
Character, antecedents and remorse of the contemnor
74 CVA22 relied upon his early indication of an intent to plead guilty. The applicant submits, and I accept, that a conviction was inevitable in the circumstances of this case and that the plea of guilty produced little significant saving of time or cost. Nevertheless, a guilty plea has some value: CRA20 at [49]; Anderson v GPY18 [2019] FCA 954 at [34]; Hannaford v HH (No 2) [2012] FCA 560; 203 FCR 501 at [82]. I have taken the respondent’s guilty plea into account, as well as the fact that it was made early.
75 As mentioned, CVA22 provided a letter of apology to the Court, which provided an explanation of why he refused to answer the questions giving rise to the contempt and why he refuses to purge his contempt. I accept CVA22’s explanation that he made the decision in part based on fear for his own safety and the safety of his family. As I have mentioned, I accept the fear is genuine and rational. CVA22 acknowledges that he is in contempt and is resigned to the consequences that will likely flow from that.
76 CVA22 is currently [REDACTED] years of age and has been in a relationship with his wife for [REDACTED] years. They have [REDACTED] children together [REDACTED] [REDACTED].
77 CVA22 has been convicted of one previous offence of assault occasioning actual bodily harm in [REDACTED]. The applicant noted that the respondent has no prior charges of contempt or similar offences. I have taken these matters into account.
Submissions as to appropriate sentence
78 By his written submissions, the applicant submitted that, having regard to the need to coerce CVA22 into purging his contempt, as well as the purposes of retribution for the contempt and the deterrence of others, an immediate and indefinite custodial sentence should be imposed. The applicant submitted that such a sentence was particularly appropriate given that it would have the effect of CVA22 not receiving a discount for time served if he is later sentenced to imprisonment in respect of the current criminal charges he is facing.
79 After inquiry from the Court, it became apparent that the Special ACIC Operation was scheduled to end in July 2023. In light of this, and other matters, the applicant properly no longer pressed for indeterminate detention.
80 CVA22 submitted that, due to the “low objective seriousness of the offending” and the “strong subjective circumstances”, he does not present as a good vehicle for general deterrence, nor is a large measure of retribution warranted.
CONCLUSION
81 I accept that CVA22 is unlikely to purge his contempt before the conclusion of his criminal proceedings in the circumstances. There was no real dispute that the criminal proceedings would be unlikely to conclude before late 2024 or early 2025. I do not completely exclude him purging his contempt before that time as a possibility. If a determinate sentence is imposed, as it should be, none of the time served will be taken into account as time served in respect of any conviction in relation to the current criminal charges.
82 In my view, an appropriate sentence having regard to the matters referred to earlier is 8 months imprisonment, reserving liberty to apply in the event CVA22 purges his contempt. CVA22 submitted that his sentence should be taken to have started earlier, noting that he notified his plea of guilty on 21 September 2022 and that the matter was originally listed for hearing on 5 November 2022. CVA22 was on remand in custody in any event. I am not satisfied the circumstances warrant an early commencement date. The eight months should commence from the date of hearing, namely [REDACTED].
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley. |
