Federal Court of Australia

Purcell v IDN24 [2025] FCA 215

ORDERS

THE COURT ORDERS THAT:

1.    The Application be dismissed.

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

REASONS FOR JUDGMENT

BENNETT J

1    Mr Purcell (the Applicant) was an examiner appointed under s 46B of the Australian Crime Commission Act 2002 (Cth) (the ACC Act). IDN24 is the pseudonym given to the Respondent. The Respondent appeared before the examiner as a witness pursuant to a summons issued under s 28 of the ACC Act.

2    By originating application filed on 31 July 2024, the Applicant seeks a declaration that the Respondent is guilty of contempt for failing or refusing to answer questions. The Applicant has proffered six charges arising from a witness examination that was convened under the ACC Act in [REDACTED].

Summary of Conclusions

3    The Applicant proffered six charges. Each charge concerns questions about ‘ANOM devices’ or an ‘ANOM platform’. Broadly, they concern whether the Respondent recalled obtaining or using an ANOM device or the ANOM platform. It is said that in response to each question, the Respondent purported to have no recollection by answering in variations of ‘I do not recall.’

4    The Applicant asks me to infer that on each occasion, the Respondent did have a recollection, and that he provided a false response as a means of ‘fobbing off’ enquiry. This is said to constitute a failure or refusal to answer the question.

5    I am not asked to determine what the Respondent’s recollection was: simply that the Respondent must have had a memory one way or the other about his use of ANOM devices or platforms. The Applicant asked me to reach that conclusion because it is inherently implausible that a person in the Respondent’s position would not recall his use (or non-use) of an ANOM device or platform one way or the other.

6    The Applicant submits that I should make the inferences for which they contend because when Counsel Assisting referred to an ANOM device she should be taken to have been referring to a ‘dedicated encrypted device’ and ‘a specific phone that was a dedicated encrypted device that doesn’t receive other applications’. It is said to be inherently implausible that a person could not recall whether or not they had or used a device with these features.

7    I have set out my analysis of this submission below. For the purposes of this summary, it is sufficient to say that I do not accept that on each of the charged occasions the Respondent should be taken to have been asked about ‘a dedicated encrypted device’ and ‘a specific phone that was a dedicated encrypted device that doesn’t receive other applications’. He was being asked about an ‘ANOM device’ or ‘ANOM platform’. There is a lack of clarity over what the Respondent understood that term to mean. There are very few indicators from which I can infer whether or not it is likely that a person with a normally functioning memory would necessarily recall the answers to the relevant questions. There is no evidence about how the ANOM devices or platforms worked, or how memorable they were to use. There is no evidence about when they were available, or how a person went about obtaining them. No evidence of this kind was put to the Respondent during the examinations.

8    The Applicant was required to prove its case beyond reasonable doubt. The case is circumstantial. A circumstantial case can certainly establish guilt beyond reasonable doubt. At the core of this case is whether it is so inherently implausible that a person does not recall the answers to the questions asked that I can be satisfied that his evidence – that he does not recall – was false and given to ‘fob off’ enquiry. In the absence of evidence about matters that might make the impugned actions or conduct memorable, I am unable to conclude that the responses given were false. In some instances, I have concluded that in any event, when read together, the responses did provide an answer to the question other than simply professing to have no recollection one way or another.

Legislative Framework

The ACC Act

9    The Australian Crime Commission (also known as the ACC, Australian Criminal Intelligence Commission and ACIC: Australian Crime Commission Regulations 2018 (Cth), r 8(a)-(c)) is established by s 7 of the ACC Act. It is given a range of functions, including to ‘undertake special ACC operations’ (ACC Act, s 7A(b)) including in relation to specified offences that may have been, may be being, or may in future be committed (ACC Act, s 7C(2)).

10    Examinations are an important method by which the ACIC obtains information to enable the discharge of its functions (Lusty v CRA20 [2020] FCA 1737 at [14] (Abraham J), citing Anderson v DKH18 [2018] FCA 1571 at [6] (White J); Anderson v XLVII (2015) 319 ALR 139; [2015] FCA 19 at [15] (White J)). The examination in this matter was undertaken for the purpose of the ACIC operation which was authorised to occur by the Special Australian Criminal Intelligence Commission Operation Determination (Serious Financial Crime) 2022 (the Instrument). In the Instrument, the Board of the ACIC certified that it considered that it is in the public interest for the operation to which the summons related to take place.

11    Examiners are appointed under Division 2 of Part II of the ACC Act. They are empowered to require the production of documents, and to require people to appear before them (ACC Act, s 28). It is an offence for a person not to attend an examination as required by a summons (ACC Act, s 30(1), (6)). It is likewise an offence for the person to refuse or fail to take an oath or affirmation (ACC Act, s 30(2)(a), (6)).

12    The significance of the examinations provided for under the ACC Act is underscored by the creation of a specific statutory pathway for responding to various forms of contempt. Section 34A provides:

34A Contempt of the ACC

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)    refuses or fails to take an oath or affirmation when required to do so under section 28; or

(ii)    refuses or fails to answer a question that he or she is required to answer by the examiner; or

(iii)    refuses or fails to produce a document or thing that he or she was required to produce by a summons or notice under this Act that was served to him or her as prescribed; or

(iv)    refuses or fails to produce a document or thing that he or she was required to produce under subsection 28(4); or

(b)    is a legal practitioner who is required to answer a question or produce a document at an examination before an examiner, and both of the following apply:

(i)    the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;

(ii)    he or she refuses to comply with the requirement and does not, when required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made; or

(c)    gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or

(d)    obstructs or hinders an examiner in the performance of his or her functions as an examiner; or

(e)    disrupts an examination before an examiner; or

(f)    threatens a person present at an examination before an examiner.

13    Where an examiner is of the opinion that, during an examination before the examiner, a person is ‘in contempt of the ACC’ for one of the reasons set out in s 34A, the examiner may apply to the Federal Court for the person to be dealt with in relation to the contempt (ACC Act, s 34B(1)(a)). In order to do so, the examiner must:

(1)    before making the application, inform the person that they propose to make the application (ACC Act, s 34B(2)); and

(2)    provide alongside the application a certificate that states the grounds for making the application and evidence in support of the application (ACC Act, s 34B(3)(a) and (b)). The certificate must be given to the person before, or at the same time that, the application is made (ACC Act, s 34B(4)).

14    The Act then sets out the role of this Court in s 34B(5) 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.

15    This case is concerned with statutory contempt. The principles concerning its application are derived from the long history of contempt proceedings at common law (as discussed in Commissioner for the Police Integrity Commission v Walker [No 2] [2006] NSWSC 696 at [26]-[44] (McDougall J) (Walker) in the context of the Police Integrity Commission Act 1996 (NSW)).

16    Contempt is a broad area of law, and can take many forms (see Clarkson v Mandarin Club Ltd (1998) 90 FCR 354 at 356 (Burchett J)). In this case, the Applicant alleges contempt by the failure or refusal to answer questions during a compulsory examination under the ACC Act. The failure or refusal is said to arise from six purported answers, each of which the Applicant alleges was not, in truth, an answer at all. The High Court in Coward v Stapleton (1953) 90 CLR 573 (Coward) considered whether a bankrupt who provided ‘plainly absurd’ responses to questions had failed to provide an answer, or had simply provided an untrue answer. The Court (comprising Williams ACJ, Kitto and Taylor JJ) said (at 578):

It is only in a strictly limited class of cases that a witness can properly be convicted of refusing to answer a question which he has purported to answer. A disbelief on the part of the court in the truth of the purported answer is not, without more, a sufficient foundation for such a conviction. The words used, considered in their setting and in the light of the demeanour of the witness, must show that in fact the witness is declining to make any reply which can be properly called an answer to the question. There must be a manifestation in some form of an intention on the part of the witness not to give a real answer. It is essential not to lose sight of the sharp distinction that exists between a false answer and no answer at all. Of course a purported answer may be so palpably false as to indicate that the witness is merely fobbing off the question. His attitude in the box may show that he is simply trifling with the court and is making no serious attempt to give an answer that is worth calling an answer. In such cases it may well be right to say that the witness refuses to answer the question, but it cannot be too clearly recognized that the remedy for giving answers which are false is normally a prosecution for perjury or false swearing, and not a summary committal for contempt. Such a committal can be justified only by a specific finding of an evinced intention to leave a question or questions unanswered, or by a finding of contempt in some other defined respect.

17    In Keeley v Brooking (1979) 143 CLR 162 (Keeley) the High Court considered the evidence of a witness who gave evidence that he did not recall matters about which he had previously given evidence. The witness denied any recollection of either the events under consideration, or the evidence he had given in separate proceedings about those matters. The High Court was asked whether the person had, in effect, refused to answer questions. Chief Justice Barwick (at 166-7) agreed with the analysis of the trial judge below that:

If a witness, having been sworn, expressly refuses to answer questions without lawful justification, he is guilty of contempt. A witness who, having been sworn, deliberately evades questions by some device may similarly be guilty of contempt. One such device is a feigned inability to remember. The witness who deliberately evades questions by falsely swearing that he cannot recall interferes with or obstructs the due administration of justice just as much as the witness who openly and directly refuses to answer those questions.

18    His Honour concluded (at 169) that the trial Judge had appropriately concluded that the witness:

had a recollection of the matters about which he was questioned and that his false assertion that he could not remember them was a refusal by prevarication to answer the questions.

19    Chief Justice Barwick touched upon the difference between contempt for failing or refusing to answer a question on the one hand, and perjury on the other. His Honour explained in that case that while falsity was part of the failure to answer, it was not the entire issue. His Honour said (at 169):

It was the nature of the manifestation of contempt in this case which brought this relationship into discussion. Here, the refusal to answer was not a refusal in express terms. What was in substance a refusal could only be held to be such if the assertion “I can’t remember” was false: and, of course, accepted as false beyond all reasonable doubt. Thus the perjured assertion made to avoid answering the questions which the applicant could have answered was an ingredient in the contempt.

20    There is therefore no difficulty in principle with a case for a failure or refusal to answer a question where the answer is false. Indeed, it was recognised in Thelander v Woodward (1981) 1 NSWLR 644 (at 647 per Moffitt P) (Thelander) that in a particular case:

[T]here may be a fine line between contempt by refusal to answer and giving false testimony. Indeed in cases where a person is guilty of contempt when he gives a reply to a question which evinces an intention to give no reply, he may, in evading an answer, also commit perjury.

21    Of course, Moffitt P in Thelander also emphasises that (at 646):

The power to punish for contempt should be exercised but with meticulous care that it is exercised properly and judicially, not merely because this is the right of the individual, but also to ensure that, if contempt has been committed, it shall be dealt with in a way which is not vulnerable.

22    That being said, it is clear contempt does not attract a higher standard of proof: the usual criminal standard applies (Keeley at 168-9 (Barwick CJ)). There can be little doubt that a purported answer can constitute a failure or refusal to answer provided that:

(1)    the answer is false; and

(2)    there is evidence from which the Court can be satisfied to the relevant standard that the witness intended to leave the question or questions unanswered (Hammond v Aboudi (2005) 31 WAR 533 at [32] (McLure JA, with whom Wheeler JA and Le Miere AJA agreed) (Aboudi), citing Keeley at 166 (Barwick CJ), 172 (Stephen J), 178 (Mason and Aickin JJ); Scott v Witness C (2009) 193 A Crim R 430; [2009] QSC 35 at [11] – [(Jones J), citing Keeley at 179 (Mason and Aickin JJ)).

The Criminal Code

23    In determining whether a person is in contempt of the ACIC under the ACC Act, Chapter 2 of the Criminal Code (Cth) applies as if the alleged contempt were an offence, and as if the references to a person being criminally responsible for an offence were references to a person being responsible for a contempt of the ACIC (ACC Act, s 34B(6)).

24    A number of principles arise naturally from the application of Chapter 2 of the Criminal Code, including the following:

(1)    The Applicant bears the burden of proof (Criminal Code, s 13.1). The standard of proof is beyond reasonable doubt (Criminal Code, s 13.2).

(2)    Because the present case rests upon circumstantial evidence, for any fact or conclusion that is an indispensable link in the chain of reasoning towards an inference of guilt, I must be satisfied that the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’ (Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), quoting Peacock v The King (1911) 13 CLR 619 at 634 (Griffiths CJ)). Put another way, proof beyond reasonable doubt is required for any fact or conclusion that is an indispensable link in the chain of reasoning towards an inference of guilt (Shepherd v R (1990) 170 CLR 573 at 581 (Dawson J)).

(3)    The exclusion of all reasonable hypotheses other than the guilt of the applicant must rest upon more than the bare possibility of innocence (Barca v The Queen (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ), citing Peacock v The King (1911) 13 CLR 619 at 661 (O’Connor J)).

(4)    All circumstances established by evidence in the proceeding are to be considered in deciding whether there is an inference consistent with innocence that is reasonably open on the evidence. It is necessary I give weight to the ‘…united force of all of the circumstances put together’ (Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J), quoting Belhaven and Stenton Peerage [1875] 1 AC 278 at 279 (Lord Cairns)).

25    In approaching the task before me, the comments of McDougall J in Walker are instructive. His Honour observed (at [43]) that:

[C]ases of contempt by false swearing are relatively rare and that, because of the possibility that the answers may in fact be honest, I must exercise great care in approaching the question, whether Mr Walker is guilty of contempt as charged. But the obligation to exercise great care applies to the consideration of whether there is proof beyond reasonable doubt of each element of the charge. It does not impose some more stringent standard of proof.

26    It is in the context of these principles that I carry out the analysis set out below.

Background Facts

27    The Applicant filed two affidavits in support of its application, being affidavits of [REDACTED] affirmed on 23 July 2024 (the First [REDACTED] Affidavit) and 5 November 2024 (the Second [REDACTED] Affidavit). The Respondent filed no evidence.

28    The First [REDACTED] Affidavit annexed a certificate within the meaning of s 34B(3) of the ACC Act (the Certificate). Section 34C(3) provides that a certificate which complies with subsection 34B(3) of the ACC Act is prima facie evidence of the matters specified in it. In the absence of contradicting evidence, that prima facie evidence becomes conclusive of those matters (Powell v Battle [1963] WAR 32 at 33 (Hale J); Saxe v Kellett [1970] VR 600 at 602 (Anderson J); Aboudi at [25] (McLure JA, with whom Wheeler JA and LeMiere AJA agreed)).

29    The First [REDACTED] Affidavit exhibits the transcripts of the examinations that took place on both [REDACTED] and [REDACTED] (the First Examination and the Second Examination respectively; together, the Examinations). Each transcript was entered into evidence on the basis of a direction under s 136 of the Evidence Act 1995 (Cth) that their use is limited to the fact that the questions were asked, but not to the underlying truth of any proposition in question.

The Examinations

30    IDN24 was served with a summons issued under s 28 of the ACC Act on [REDACTED]. The purpose of the summons was to require IDN24 to answer questions for the purposes of a special operation connected with serious and organised crime. IDN24 was represented by counsel at the First Examination, and by a solicitor at the Second Examination.

31    With the agreement of both parties, I have watched the recordings of the Examinations. I have observed the demeanour and tone of the Respondent and taken it into account in my assessment of each charge.

32    Until the hearing of this matter, the Applicant appeared to urge the Court to proceed on the basis that it could take judicial notice of the fact that ANOM devices are mobile phones on which ‘ANOM’, an encrypted messaging application, is installed and that ANOM was an encrypted messaging application deployed during a covert operation conducted by the Australian Federal Police known as ‘Operation Ironside’. Reliance on the principles of judicial notice to establish these facts was disavowed on the day of the hearing. No advance notice of that change was provided to either the Respondent or the Court.

33    The Applicant sought to rely instead on the way that ANOM devices were described to the Respondent in the First Examination. The Applicant asserted the Respondent was told by Counsel Assisting that:

(1)    ANOM was a ‘dedicated encrypted device platform’; and

(2)    ANOM devices are ‘a specific phone that was a dedicated encrypted device that doesn't receive other applications’.

34    This is then said to provide the underpinning to all subsequent questions about ANOM devices or platforms in the Examinations. Whether this is a proper description of what was put to IDN24 during the First Examination, and if so, what can be inferred about his understanding of ANOM devices in relation to the charged responses, were contested issues which I address below (along with other factors relied upon to submit that the Respondent’s responses were inherently implausible). Ultimately, the Applicant submits that these two characteristics were part of the reason that it is inherently implausible that the Respondent would not recall the answers to questions asked about ANOM devices, irrespective of what those answers were. That is because a person would recall the answers to the questions about a dedicated encrypted device platform, or a specific phone that was a dedicated encrypted device that doesn’t receive any other applications. Any answer by which a person purported to not recall one way or another is said to be so inherently implausible as to satisfy me that the answer is both false, and given to ‘fob off’ enquiry.

35    Counsel for the Applicant was admirably frank in accepting that this constituted a late shift in the Applicant’s case and did not oppose leave being granted to the Respondent to make further submissions in relation to the issue. A few pages of submissions were received following the hearing, and the Applicant responded to those submissions. Where appropriate, those submissions are referred to below.

The First Examination

36    In the First Examination, the Respondent was questioned about a range of matters, including financial and accounting arrangements, his work history and his response to a summons to produce his mobile phones.

37    The Applicant relied upon the Respondent’s apparently reasonable recall of some matters of detail, such as around his involvement with a family trust, to fortify the conclusion that the Respondent’s memory was not fundamentally faulty. The Applicant also relied upon the expression ‘I don’t recall’ being a device which the Respondent used to avoid answering questions. In the First Examination, the Respondent was questioned about whether he attempted to ‘factory reset’ his mobile phones before providing them to the ACIC. The following exchange occurred:

COUNSEL ASSISTING: Why did you attempt to factory reset the devices before providing them to the ACIC?

IDN24:         I do not recall.

38    The Examiner then adjourned the matter to permit IDN24 to take some advice, following the observation from Counsel Assisting that ‘[i]t’s quite clear that there are deliberate attempts being made to avoid answering the questions’. The First Examination then resumed, and IDN24 said that he had factory re-set his phones, to avoid scrutiny of his phones by his wife, to whom he was being unfaithful. Accordingly, after a warning and the opportunity to consider the position, the Respondent had a precise recollection of both the fact that he attempted to factory re-set the phones, and the purported reason that he took that step. His earlier evidence that ‘I don’t recall’ was false.

39    The Applicant submits that this suggests the Respondent employed the device of responding with ‘I don’t recall’ to avoid answering questions. The Applicant disavows any tendency reasoning in this analysis, and submits instead that it is part of the entirety of the evidence that I am required to evaluate. I accept that this is so. I likewise accept that the fact that the Respondent ultimately did not adhere to ‘I do not recall’ but gave a responsive answer to the question about his attempt to factory reset the phone undermines the relevance of that device to the charged questions, where the Respondent maintained the assertions regarding his lack of recollection. Taken together, these are matters which inform my overall analysis of the First and Second Examination.

40    Another part of the Applicant’s case took place in the First Examination: the first references to ‘ANOM’ or ‘ANOM devices’. The first mention of ‘ANOM’ took place towards the end of the First Examination. Given the Applicant’s reliance on these references, it is appropriate to set out the exchange in detail:

COUNSEL ASSISTING:     So when you went overseas you went overseas just after the AFP Operation Ironside ANOM resolution, which was the AFP operation that obviously had access to the encrypted network. You left very, very shortly after that resolution. Did that AFP activity have anything to do with the reason that you left?

IDN24:             No, it did not. Why would it - no, it did not.

COUNSEL ASSISTING:     It didn't, okay?

IDN24:             Yep.

COUNSEL ASSISTING:     On that, as I've just stated, obviously the well-publicised AFP Operation Ironside related to them having access and control of the ANOM dedicated encrypted device platform. Now you are an identified user of that platform for an extended period of time with multiple devices. Where did you get your first ANOM?

IDN24:             I don't recall that question. Can you please give me --

COUNSEL ASSISTING:     So you --

EXAMINER:     Just break it up into some propositions, Counsel, so that he can agree with them as we go.

COUNSEL ASSISTING:     Thank you, Examiner.

EXAMINER:             Or disagree.

COUNSEL ASSISTING:     You had an ANOM device?

IDN24:             Not to my recollection, no.

EXAMINER:     [IDN24], think carefully about your next answer. I really urge you to think carefully about your next answer.

COUNSEL ASSISTING:     Did you have an ANOM device or devices?

IDN24:     Not to my recollection. Not to my recollection, no.

COUNSEL ASSISTING:     [IDN24], the Examiner has been incredibly patient and provided you with a number of warnings.

EXAMINER:     You are at the point now where you - I'm considering whether or not you ought to be prosecuted for giving false and misleading evidence to this submission. Is it your sworn, let me ask you again. I'll ask you the question. Is it your sworn evidence that you were not a user of the ANOM platform on multiple devices?

IDN24:             No, I wasn't. Not to my recollection, no.

COUNSEL ASSISTING:     Examiner, I'll continue to ask the witness a number of questions but I note that we may again need to provide him a further opportunity.

41    There was then some discussion about the relevance of the questions to the special operation, before the questioning continued as follows:

COUNSEL ASSISTING:     Have you ever had a dedicated encrypted communications device?

IDN24:             Yes.

COUNSEL ASSISTING:     Which device did you have?

MR IDN24:             WhatsApp.

COUNSEL ASSISTING:     So when I'm saying a dedicated encrypted device, I'm talking about a specific phone that was a dedicated encrypted device that doesn't receive other applications?

IDN24:             No. No, not to my recollection, no.

COUNSEL ASSISTING:     [IDN24], you were a user of the ANOM platform, that is correct, isn't it?

IDN24:             If you say so.

EXAMINER:     No, no, no. No, no. That's not what she's saying at all. The proposition was put to you, and we're asking for your honest answer, the proposition was put to you you were a user of the ANOM platform, weren't you?

IDN24:             No, I wasn't not, if that's the question.

COUNSEL ASSISTING:     [IDN24] between December twenty eighteen (2018) and November twenty twenty (2020) you were a user of the ANOM platform with multiple devices. I'm asking you again: did you ever, at any point in time, use the ANOM platform?

IDN24:             No. Could you repeat the question, please?

COUNSEL ASSISTING:     Have you ever had an ANOM device?

IDN24:             No, I have not, to the best of my recollection.

COUNSEL ASSISTING:     Examiner, before we start down this path, I do think it would be useful to give the witness an opportunity to seek some further legal advice. I appreciate that we have provided a break before, but I think prior to going down this road, I would like to afford him every opportunity.

EXAMINER:     Absolutely. All right, Mr [Counsel], I think it's imperative that you confer with your client again. We are fast reaching the point of no return in terms of answers that he's giving.

COUNSEL:     Understood, Sir.

EXAMINER:     I think you need to have some time with him. Thank you, we're going to have a short break. Thank you.

42    There was then an application to adjourn the examination which was granted. The basis for the adjournment application was the submission that the Respondent was suffering from a panic attack. No evidence was adduced to support the notion that there had been a panic attack, or that there was any anxiety related disorder that could be relevant to the proceeding. I therefore place no weight upon the references to a purported panic attack at the conclusion of the First Examination.

43    The references to ‘ANOM’ and ‘ANOM device’ in the First Examination are relied upon heavily by the Applicant as informing the understanding of the term as used in the Second Examination. The Applicant asserts that from the exchange set out above that I can safely infer that:

(1)    the Respondent understood what was meant by the term ANOM device; and

(2)    the Respondent understood that on each subsequent occasion that he was being asked about an ANOM, or ANOM device, or ANOM platform, he was being asked about a ‘dedicated encrypted device’ or a ‘specific phone that was a dedicated encrypted device that doesn’t receive other applications’.

44    I have no difficulty in concluding, based on my overall review of the Examinations that the concept of ‘ANOM’ and ‘ANOM device’ held some meaning for the Respondent, and that he understood that it was connected with a method of encrypted communications. However, I do not accept that, in the course of the Second Examination (discussed below), the Respondent was answering on the basis of the meaning for which the Applicant contends.

The Second Examination

45    The Second Examination took place a week after the First Examination. There were preliminary discussions about the production of various bank documents. This questioning went on for some time before Counsel Assisting re-introduced the concept of ‘ANOM’ in the following way:

COUNSEL ASSISTING:     I want to ask you some questions about the ANOM platform of encrypted communications devices. So I'm just going to go through and start asking you a series of questions about that.

IDN24:    Yep.

46    The Respondent displayed no confusion when the topic was reintroduced. This reinforces my view that the Respondent had an understanding of what ‘ANOM’ is – although little evidence was elicited from him as to his understanding of the topic during the Examinations. It is evident that he was expecting questions about the topic: that is to be expected given the circumstances in which the First Examination was adjourned. However, no additional context regarding ANOM devices was provided by Counsel Assisting during the Second Examination. Importantly, the proposition that ANOM devices were a specific phone that did not receive other applications was not put to IDN24 at the Second Examination. It is clear that there was a degree of assumed knowledge on the part of both Counsel Assisting and the Examiner on the one hand, and the Respondent on the other. It is not clear if each assumed the same knowledge about ANOM devices and how they operated.

47    The following exchange then occurred:

COUNSEL ASSISTING:    So when did you get your first ANOM device?

IDN24:                 I do not recall.

48    This forms the substance of the first charge.

49    IDN24 was then cautioned, and reminded that he had the benefit of the privilege against self-incrimination and that the proceedings were confidential. The following exchange then occurred:

COUNSEL ASSISTING:     Have you ever had an ANOM device?

IDN24:             Not that I recall of.

50    The Respondent was then given some background information about the relevance of the line of questioning. Counsel Assisting then explained that the special operation was ‘aware of the answer’ to the questions regarding IDN24’s use of ANOM device or devices in the following terms:

That is the basis for these questions being material to the special operation, notwithstanding that we are aware of the answer to the question with respect to whether or not the witness had an ANOM device or devices, noting that there were multiple devices over a sustained period of time and the witness has been identified as the user of those devices. So I’ll just put that context on the record, noting that that is the relevance of these questions to the special operation.

Evidence of these matters was not put to IDN24 during the Examinations. As mentioned elsewhere, evidence of these matters is not before the Court, and the transcript was tendered subject to a direction under s 136 of the Evidence Act 1995 (Cth).

51    With that context, Counsel Assisting asked the following questions:

COUNSEL ASSISTING:     Have you ever used an ANOM device?

IDN24:             Not that I recall of.

COUNSEL ASSISTING:     I'm going to ask you again: have you ever had access to, seen or used an ANOM device?

IDN24:             No, I do not recall that.

52    The second question set out above (‘have you ever had access to, seen or used an ANOM device?’) and the response forms the third charge.

53    The witness was then directed by the Examiner to answer the question honestly. The following exchange then took place:

COUNSEL ASSISTING:    Have you ever had an ANOM device?

IDN24:     Not to the best of my belief, no.

COUNSEL ASSISTING:     Did you use an ANOM device or devices between the period of December twenty eighteen (2018) to November twenty twenty (2020)?

IDN24:             I don't recall.

COUNSEL ASSISTING:     Examiner, I would submit that it appears that the witness is not making –

EXAMINER:             Yes.

COUNSEL ASSISTING:     -- a genuine attempt to answer the questions and it may be your view that the witness is failing to answer the questions using, by indicating no knowledge of events that should be well within the witness's knowledge.

EXAMINER:     [IDN24], I told you at the start of these proceedings that you cannot say that you don't know or you don't remember when you actually do know or you do remember the answer to a question. I find that your answers are not, once again, not credible and I'm directing you to answer that question honestly. If you continue to answer questions in a manner that you don't know and you don't recall, when you do, you will be in contempt of the Commission. So, please, can you answer the question honestly.

IDN24:                I think I want to have a break.

54    The Second Examination adjourned so that the Respondent could have the opportunity to confer with his lawyer. The examination resumed and the Examiner again cautioned the Respondent. The Examiner explained that:

you've been asked some questions about the ANOM platform and the Commission is interested in relation to the people that you were communicating with on that platform.

55    This comment about the questions about ANOM focus upon the ‘ANOM platform’ and the people IDN24 was communicating with on the platform. The common understanding of a platform in the context of communications is consistent with the definition provided by the Macquarie Dictionary:

Platform:

11.

a.     Computers an operating system.

b.    a telecommunications system: an SMS platform.

56    The Examiner sought assurance that the Respondent had no safety concerns in relation to answering the questions and the Respondent denied having such concerns. He was again formally directed to answer the question. The following exchange then occurred, which forms the second charge (despite it taking place chronologically after the third charge):

COUNSEL ASSISTING:     … have you ever used an ANOM device?

IDN24:                Not that I recall.

57    The Respondent was then asked whether he used an ANOM device or devices between December 2018 and November 2020. The Respondent replied: ‘No, I don’t recall that.’ The Respondent then asked for the date range to be repeated, and then replied: ‘Not that I recall, no.’ A further formal direction to the Respondent to answer the question truthfully followed, and then the following exchange occurred which forms the fourth charge:

COUNSEL ASSISTING:     Did you use an ANOM device or devices between December twenty eighteen (2018) and November twenty twenty (2020)?

IDN24:    I do not recall.

58    IDN24 was then asked whether he discussed the importation of illicit tobacco and border-controlled drugs on the ANOM platform, to which he replied he did not recall. After being formally cautioned and directed again, the following exchange took place:

COUNSEL ASSISTING:     Did you discuss the importation of illicit tobacco and/or border-controlled drugs on the ANOM platform?

IDN24:     No, I don't recall.

59    This exchange is the subject of the fifth charge.

60    Immediately following was an exchange about whether IDN24 had discussed the profits he had made from the importation of illicit tobacco on the ANOM platform (to which IDN24 responded ‘No, I don’t recall that’). The Respondent was then formally directed to answer the question truthfully. There then occurred the exchange that forms the sixth charge in this proceeding:

COUNSEL ASSISTING:     Did you discuss the profits you made from the importation of illicit tobacco on the ANOM platform?

IDN24:     I do not recall.

61    The Examiner then concluded with a final question about another person of interest to the special operation. Counsel Assisting then sought to adjourn the examination on the basis that the answers provided by the Respondent prevented them from exploring lines of questioning arising out of the communications ‘on that platform’. The Second Examination then concluded.

Inferences

Principles relevant to inferential reasoning

62    This case involves inferential reasoning. The difference between permissible inference on the one hand and speculation on the other was analysed and explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275-6 [84]-[88]:  

It is often difficult to distinguish between permissible inference and conjecture.  Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists. 

Lord Macmillan in Jones v Great Western Railway Co (1930) 144 LT 194, in the context of stating that a possibility that a negligent act caused injury was not enough, said (at 202): 

“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.”

After referring to this passage, Sir Frederick Jordan in Carr v Baker (1936) 36 SR (NSW) 301 at 306 said: 

“The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible.”

As Lord Wright put it in a frequently cited passage in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170: 

“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some case the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”

The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: see, eg, Luxton v Vines (1952) 85 CLR 352 at 358. 

63    The criminal standard of proof applies to the present matter, by virtue of the terms of the Criminal Code, set out above. That standard of proof ‘precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference’ (G v H (1994) 181 CLR 387 at 390 (Brennan and McHugh JJ)).  The principles set out in subparagraphs [24(2) and (3)] above are relevant to the analysis.

Inherent implausibility

64    A core issue in this case is whether the Respondent’s purported lack of recollection is inherently implausible. The Applicant asks me to reason that a person with the Respondent’s characteristics would recall the answers to each of the six questions. This involves consideration of the characteristics of the Respondent, and the circumstances which each question asked him to recall. While I have generally analysed the inherent implausibility of each charge, I have also considered the issue of overall implausibility of the responses having regard to the whole of the evidence.

65    The concept of ‘inherent implausibility’ was explained in Walker. In that case, Mr Walker was a police officer for certain discrete periods between 1969 and 1999. He was subject to an investigation by the Police Integrity Commission (PIC) in relation to allegations of criminal activity or serious police misconduct. One of the events the subject of scrutiny by the PIC was referred to as the ‘Chiswick Event’. The Chiswick Event was a meeting alleged to have taken place at certain premises in Chiswick, in the company of particular people, including Mr Walker’s brother. The meeting was said to have taken place five months before Mr Walker gave evidence to the PIC. During his examination, Mr Walker asserted that he had no recollection one way or the other whether the Chiswick Event occurred.

66    Mr Walker was played a video showing him present in the company of his brother (and others) at the premises in Chiswick five months earlier. He was aware of evidence given by his brother (and others) to the effect that he had been present at the meeting and that the meeting was said to have involved a criminal enterprise. He gave clear evidence of matters which pre-dated the Chiswick event. He nonetheless said he had no recollection one way or the other as to any aspect of the Chiswick event. He suggested there could be a medical explanation for his lack of recollection. The examination in that case was adjourned, and reconvened just over a month later. At that later examination, Mr Walker gave detailed evidence of the Chiswick event and his involvement in it. The Court observed that this evidence was ‘in marked – indeed total – contrast to his evidence on the same topic on 6 December 2004’.

67    The PIC primarily relied upon the following matters (at [189]) to establish that Mr Walker’s asserted lack of recollection was not genuine:

(1)    The inherent implausibility of the proposition that a person in Mr Walker’s position would have no recollection at all of the matters put to him (in circumstances where, it was submitted, the effect of his evidence was that he had no recollection at all of those matters).

(2)    The contrast between his total lack of recollection of the Chiswick event on the one hand and his clear recollection of other events, most of which predated the Chiswick event, on the other.

(3)    The marked improvement of his recollection of the Chiswick event between 6 December 2004 and 18 January 2005 (and the continued improvement, in relation to the Chiswick event, as demonstrated by his evidence before me on 21 June 2006).

68    The Commissioner also relied upon some other minor factors that I do not repeat here. Ultimately, his Honour characterised his views on the inherent implausibility of Mr Walker’s responses (at [192]-[193]) in the following way:

It is implausible – more accurately, incredible - that anyone (to whom serious criminal activity was not a routine and everyday occurrence) could have professed the total lack of recollection asserted by Mr Walker when allegations of such activity were put to him: both as to the general allegation and as to the specific instances. Thus, unless there were some explanation for the implausibility, that of itself would lead to the conclusion that the evidence of lack of recollection was false, and knowingly so.

… Even if Mr Walker had had some difficulty of recollection on 8 December 2004, his memory must have been jogged by seeing what was depicted by the video tape. His continued assertion of lack of recollection, and his failure to accept that he was depicted on the video tape, are incapable (absent some explanation) of belief.

69    The ‘implausibility, or incredibility’ of the position in Walker was compounded by a number of features of the event that were put to the witness and acknowledged by him in examination (see [194]). Ultimately, his Honour concluded (at [195]) in that case that the total amnesia professed by Mr Walker was ‘so unlikely as to be, absent some explanation, incapable of acceptance’.

70    In the case Keeley, the applicant had given evidence in a proceeding concerned with alleged bribery by a police officer. However, at the subsequent trial of that matter, the applicant said that he could not remember at all either his evidence in the committal proceedings or any of the events to which it related (at 162). Chief Justice Barwick recorded the issue (at 166) as follows:

Generally the relevant parts of the transcript record of the trial consisted of the persistent statement by the applicant that "I can't remember" in answer to questions on a variety of matters, including statements which he had made on earlier occasions, some in court proceedings and on oath.

71    In that case, the applicant did not contest that the primary judge could have been properly satisfied beyond reasonable doubt that the applicant was lying when he said he could not recall the matters put to him (see 167). The case turned on whether there was a higher standard of proof required for cases of contempt for failing or refusing to answer questions. The Court held that there was no such higher standard.

72    In each of the cases outlined above, there was direct evidence of the falsity of the purported lack of recollection. In each case that direct evidence of falsity was put to the witness in the course of an examination. These are matters which distinguish those cases from the present.

73    Of course, each case turns upon its own facts. I do not hesitate to accept that it is possible for a case of contempt by prevarication to be established by circumstantial evidence alone. However, to do so, it is necessary that the Applicant identify primary facts from which I can infer that (see [22] above):

(1)    IDN24 had a recollection in response to each of the questions; and

(2)    IDN24 answered falsely when he said that he did not have a recollection; and

(3)    IDN24 intended to leave the question unanswered.

74    The Applicant asks that I reason as follows:

(1)    when reference was made to ‘ANOM’, ‘ANOM devices’ or ‘ANOM platforms’ during the Examinations, the Respondent understood that he was being asked about ‘a specific phone that was a dedicated encrypted device that doesn’t receive other applications’;

(2)    the Respondent understood that ‘ANOM device’ had the meaning given by Counsel Assisting at the First Examination when he answered the charged questions during the Second Examination;

(3)    that ANOM devices were a specific dedicated encrypted device that does not receive other applications is sufficiently memorable that I should be satisfied that the Respondent would recall whether he had such a device and be able to answer the questions the subject of the charge (irrespective of whether that answer was positive or negative);

(4)    the conclusion for which the Applicant contends is said to be fortified by:

(a)    IDN24’s demeanour during the Examinations;

(b)    IDN24’s personal circumstances, including his familiarity with telephonic devices (demonstrated by his awareness and apparent familiarity with WhatsApp);

(c)    the other matters that he was able to recall (such as the details of a family trust);

(d)    IDN24’s use of the phrase ‘I don’t recall’ at other points in the examinations, including in circumstances where:

(i)    he later admitted that he did recall the relevant matter; or

(ii)    while he did not later admit that he recalled the relevant matter, the matter was within the ordinary recall of an ordinary person (such as who his mortgage was with or who he banked with three years previously);

(e)    purported inconsistencies in his responses, such as seeking clarification on a particular question which queried the dates during which he had used an ANOM device; and

(5)    as a consequence, based on him repeatedly saying that he did not recall in answer to questions about ANOM devices, I can be satisfied beyond reasonable doubt that he was lying as to his non-recollection to ‘fob off’ enquiry.

75    The first issue with this analysis is that it rests in substantial part upon acceptance that the Applicant’s description of ANOM devices as ‘a specific encrypted device that doesn’t receive other applications’ permeated all the interactions about an ‘ANOM’, ‘ANOM device’ or ‘ANOM platform’. As an examination of the materials demonstrates, this logic is far from secure.

76    In the First Examination, when Counsel Assisting asked about a ‘dedicated encrypted device that doesn’t receive other applications’ IDN24 denied having such a device (see [41] above). Counsel Assisting then asked about the ‘ANOM platform with multiple devices’, before asking if IDN24 had ever had an ‘ANOM device’. Taken together in the holistic way that it is appropriate to evaluate the evidence, I do not consider that the inference arises that each time the concept of ANOM was being discussed, it was on the mutually understood basis that it included a reference to a dedicated encrypted device that doesn’t receive other applications. It is, at the very least, unclear what the elements of, and distinction between, the ‘ANOM devices’ or ‘ANOM platform’ was.

77    It is further relevant to the analysis that in the Second Examination, in which all of the charged responses were given, the topic of ANOM was introduced by Counsel Assisting as follows:

I might take us back to the topic that we were discussing last time, noting that this is the topic that I know that you found quite uncomfortable and did result in you receiving a number of warnings from the Examiner. I want to ask you some questions about the ANOM platform of encrypted communications devices. So I'm just going to go through and start asking you a series of questions about that.

It is not clear from this introduction that Counsel Assisting is limited to a discussion of a stand-alone ‘dedicated encrypted device that doesn’t receive other applications’. Indeed, the apparently interchangeable use of the terms ‘platform’ and ‘device’ undermines the inference, which I am invited to make, that IDN24 understood the references to ANOM to be to a stand-alone device. It seems reasonably clear from a fair reading of the context (including watching and listening to the recording) that ‘ANOM platform’ can be taken as a reference to a platform which facilitates communication – not unlike WhatsApp. Indeed, in its reply submissions filed ahead of the hearing, the Applicant submitted that it was a primary fact in this case that:

ANOM devices are mobile phones on which “ANOM”, an encrypted messaging application, is installed.

78    The Applicant disavowed this meaning in the hearing. However its use in this way by the Applicant underscores the uncertainty about the way that the terminology was used by the Applicant. I am conscious that the Respondent is a person responding to questions in the reasonably stressful context of a compulsory examination. I do not think it is appropriate in that context, and in light of the descriptions given, to accord such precise meaning to a word or phrase, as though it is a defined term with a clearly defined meaning.

79    The Applicant further submitted that the term ‘ANOM platform’ was a reference to the telecommunications system made up of ANOM devices. There is no evidence to suggest this meaning, nor that IDN24 bore this meaning in mind when responding to questions directed at the ‘ANOM platform’. The only distinguishing features about ANOM which I can infer IDN24 was aware of was that it is encrypted and that it was accessed via a phone.

80    The summons identified that the Respondent was to be questioned in relation to, among other things, the use of encrypted communication devices and messaging applications to facilitate various illegal activities. This is highlighted by Counsel Assisting in her submissions to the Examiner during the Second Examination. She observed that ‘[t]he face of the Summons … includes the use of encrypted communications devices and messaging applications to facilitate those activities’. The reference to both encrypted communications devices and messaging applications fortifies the conclusion that the subject of the Examinations was not confined in the manner suggested by the Applicant.

81    I have considered each charge with the above analysis in mind. Where appropriate or necessary in respect of each individual charge, I have made additional comments.

The effect of Weissensteiner

82    Both parties made submissions as to the effect of the case of Weissensteiner v The Queen (1993) 178 CLR 217 (Weissensteiner). That was a case in which an accused had been charged with the murder of two individuals and the theft of their boat. The accused had set off with the two persons on a boat. Only the accused was seen alive again. There was abundant evidence from which the jury could conclude that the missing individuals were dead, and from which it could be concluded that the accused had both stolen the boat and been involved in their death. The accused elected to give no evidence and call no witnesses. The trial judge directed that the jury might more safely draw an inference of guilt from the proved facts in circumstances where the accused had elected not to give evidence of relevant facts which could only have been within his knowledge.

83    Ultimately, the effect of Weissensteiner is narrow (RPS v The Queen (2000) 199 CLR 620 at [27] (Gaudron ACJ, Gummow, Kirby and Hayne JJ) (RPS); Dyers v The Queen (2002) 210 CLR 285 at [120]-[121] (Callinan J). I accept that I might more easily draw inferences of guilt where the inferences arise on the basis of the primary facts. I keep closely in mind the significance of the presumption of innocence and the right to silence and the significant burden that rests upon the Applicant (RPS at [101] (Callinan J)). The reasoning in Weissensteiner is not to be used to fill gaps, as noted by Mason CJ in that case at 228, with whom Deane and Dawson JJ agreed:

Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.

84    The reasoning must not become circular: only after the inference arises on the basis of primary facts is it permissible to ‘more safely’ draw an inference consistent with guilt based on the Respondent’s silence (See R v Burdett (1820) 4 B & AId 95 at 161-2 (Abbott CJ), as cited with approval in RPS at [23]). As the plurality in RPS (at [27]) noted:

[I]t will seldom, if ever, be reasonable to conclude than accused in a criminal trial would be expected to give evidence. The most that can be said in criminal matters is that there are some cases in which evidence (or an explanation) contradicting an apparently damning inference will be drawn from proven facts could come only from the accused. In the absence of such evidence or explanation, the jury may more readily draw the conclusion which the prosecution seeks.

85    I have applied this approach in my analysis of each of the charges, below.

The Charges

86    There are six charges. Each of the six charges are subject to the same procedural requirements, they are:

(1)    the examiner must hold the opinion that the witness was in contempt of the ACIC (ACC Act, s 34B(1));

(2)    The examiner must advise the witness that the examiner proposes to make an application to have the witness dealt with in relation to contempt of the ACIC (ACC Act, s 34B(2));

(3)    The examiner must give a copy of the certificate under s 34B(3) of the ACC Act to the witness before or at the same time as the application is made (ACC Act, s 34B(4)).

87    It is uncontroversial that each of the procedural requirements has been met in this case. Briefly in respect of each, I note as follows:

(1)    The Certificate provides evidence that the Examiner held the opinion that the Respondent was in contempt of the ACIC. There being no evidence to the contrary, the requirement is satisfied.

(2)    The Respondent was advised that the Examiner was of the opinion that the Respondent was in contempt of the ACIC and that the Examiner proposed to make an application to have him dealt with for contempt in a number of instances in the course of the Second Examination. The Certificate provided is in evidence before me. I am therefore satisfied for both reasons that the Respondent was properly advised of the Examiner’s opinion that he was in contempt of the ACIC.

(3)    The Certificate states that it was made under s 34B(3) of the ACC Act and was to be given to the witness at or before the time that application was made.

88    The parties agreed that to make good the charges, it is necessary for the Applicant to persuade me beyond reasonable doubt that in respect of each charge:

(1)    the Respondent appeared as a witness at an examination before an examiner;

(2)    the Respondent refused or failed to answer a question;

(3)    the Respondent was required by the examiner to answer that question;

(4)    the Respondent intended to refuse or fail to answer that question in the manner set out above.

89    In respect of each of the six charges, there is no dispute that the Respondent appeared as a witness in an examination before the Examiner, and that the Respondent was required by the Examiner to answer each specific question. These facts are in any event established by the Certificate and the transcript annexed thereto. I therefore find each of those elements established in respect of each of the charges.

90    The core area of contention in respect of each charge was whether the Respondent in fact failed or refused to answer the question by providing a false answer’, and whether the Respondent intended to refuse or fail to answer that question. Because those elements are positively established, it is not necessary to determine whether the Respondent was reckless with respect to the matters at 88(1) and (3) above.

91    I turn now to each of the charges.

The First Charge

92    The first charge is that:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before Andrew Purcell, an Examiner of the ACC (the Applicant), you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the Australian Crime Commission Act 2002 (the ACC Act).

93    The particulars to the first charge are that the Applicant required that the Respondent answer the following question:

So when did you get your first ANOM device?

94    The Respondent replied:

I do not recall.

95    It is alleged that by giving that answer, the Respondent refused or failed to answer the question. The meaning of the Respondent’s answer is disputed.

96    The Respondent argues that read in context, the Respondent effectively denied ever having received an ANOM device. That is, he did not recall, because it did not happen. If correct, it would follow that the response was not a failure to answer in the sense required by s 34A(a)(ii).

97    The Applicant’s written submissions filed prior to the hearing asserted that it was ‘inherently implausible that the Respondent could not recall the answer to the questions set out in the statement of charge’ and that he answered each question as ‘I do not recall’, ‘Not that I recall’ or ‘No, I do not recall’ in a manner that was indicative of a deliberate refusal to answer.

98    In written submissions filed after the hearing, the Applicant asserted that I should conclude the Respondent’s answer was to the effect that he did obtain at least one ANOM device, but could not recall when in time the ANOM device was obtained. This is said to be inconsistent with his earlier and later responses that he did not recall whether or not he ever had an ANOM device. The Applicant asserts that this makes it more likely that the response the subject of the first charge was false, and was provided only to fob off enquiry.

99    I accept that the question put to the Respondent was a rolled-up question that was pregnant with the proposition that the Respondent had previously obtained an ANOM device. However, I do not accept that in giving the response that he did, the Respondent accepted and affirmed that he had obtained an ANOM device. Nor do I accept the Respondent’s contention that I should understand the response as a negative response to the question. Understood in context, the answer was simply to the effect that he did not have a recollection of the events put to him.

100    The Applicant also argued that it does not matter whether IDN24 ever obtained an ANOM device or not – an honest witness would have remembered one way or the other and would have given an answer to that effect.

101    To be so persuaded, I need to conclude that it is inherently implausible that someone in the Respondent’s position – knowing what he did about ANOM devices – would not remember either obtaining his first ANOM device or never having obtained one, so that the only reasonable inference remaining is that he did in fact remember.

102    There was no evidence before me about any of the following matters:

(1)    what ANOM devices in fact are, or what the ANOM platform actually is (as opposed to the way that they were described by Counsel Assisting);

(2)    if the Respondent ever actually had an ANOM device, and if so, how or when he obtained it or used it;

(3)    the circumstances in which any person or the Respondent specifically obtained an ANOM device, i.e whether this was done through taking memorable steps by the Respondent, or whether it was something that was relatively straightforward (and therefore less memorable) to obtain; and

(4)    how an ANOM device or the ANOM platform was used, and whether or not there were any memorable aspects to their use.

103    The lack of evidence about these matters means that there is dearth of material about which I can infer matters that would make it more or less memorable to obtain an ANOM device.

104    The Applicant asserted that it was not necessary for me to know anything about how ANOM devices actually worked; it was sufficient for me to have regard to the way in which they were described by Counsel Assisting in the course of the Examinations. This is because evidence about ANOM devices as a matter of fact does not assist to determine if the Respondent’s answers were false; rather, the necessary enquiry is into the Respondent's understanding of those devices.

105    The Applicant asserts that it was not open to it to lead evidence outside what took place in the First Examination and the Second Examination because the offences upon which they rely are subject to the same evidentiary rules as contempt in the face of the Court (see Thelander at 653 (Reynolds JA)). Assuming that to be so does not change the burden which lies upon the Applicant.

106    I take into account that the Respondent appeared to have a normally functioning memory. There has been no suggestion put forward that IDN24 had any condition or other impairment that affected his memory. Nor has there been any suggestion that he was overborne by any form of duress or fear. He was consistently and conscientiously reminded of the protections afforded to him by the legislation.

107    In the context of the overall exchange in the First and Second Examination, I have considered whether the Respondent was responding to the questions on the basis that an ANOM device was a specific phone that was a dedicated encrypted device that does not receive other applications.

108    In the particular context of the First Charge the question and answer immediately follow introductory comments by Counsel Assisting that referred to asking questions about ‘the ANOM platform of encrypted communications devices’. There was no reference to individual devices that carry no other applications. The Applicant submitted (in post-hearing submissions) that the ‘ANOM platform’ is a reference to the telecommunications system made up of ANOM devices. With respect, that meaning does not necessarily follow, and is certainly not clear on the face of the question, when considered in its complete context.

109    Overall, I am not satisfied, having regard to the context of the Examinations, including the demeanour and tone of IDN24, and the analysis set out at [43] – [44] and [75] – [80] that the question the subject of the first charge was – or can be inferred to the relevant standard, to have been understood by the Respondent as being – about a ‘dedicated encrypted device’ being a ‘specific phone that was a dedicated encrypted device that doesn’t receive other applications’. It is clear that the words ‘ANOM device’ and ‘ANOM platform’ had a meaning for the Respondent, and that it concerned encrypted communications. Ultimately, it is not necessary that I speculate about the precise content of what was understood by the words ‘ANOM device’: I do not consider that they carried the very specific meaning contended for by the Applicant.

110    It follows that I am required to consider whether it was inherently implausible for the Respondent to fail to recall the answer to the question the subject of the first charge in all the circumstances before me.

111    The Applicant refers to and relies upon Walker as an example of a case in which the inherent implausibility of the response was found. That case is distinguishable from the present. In Walker, the Court found a ‘particularly striking’ example of the inherent incredibility of Mr Walker’s evidence was that after viewing a videotape of himself at the event in question in company with his brother five months earlier, he could recall no single detail of the encounter. His Honour in that case concluded that even if he had some difficulty of recollection, his memory ‘must have been jogged by seeing what was depicted in the video tape’ (at [193]). Moreover, in Walker, the implausibility of his position was compounded by the ‘many noteworthy features of the Chiswick event that were put to and acknowledged by him in cross-examination’ (at [194]). This case is different: the Applicant does not take a position about whether the Respondent ever had an ANOM device or used the ANOM platform. The inherent implausibility is said to arise based on:

(1)    the nature of the question, the date at which it was asked, and the Respondent’s response to other questions (which revealed the Respondent’s familiarity with and use of telephonic devices);

(2)    the Respondent’s ability to recall other matters which are said to be less significant (i.e that he had downloaded WhatsApp on each of his phones);

(3)    the Respondent’s failure to recall some matters within the recall of ordinary people (i.e. who he had his mortgage with).

112    I have not been provided with any evidence that puts any importance on the date on which the question was asked. The Respondent seemed from the Examinations to have a reasonable understanding of telephonic devices, consistent with anyone his age in the community. There was certainly nothing special about his state of knowledge. There were no qualifications or background that were said to be relevant to this issue.

113    The Respondent recalled some matters that he was asked about, and did not recall others. I am not able to assess whether they were more or less significant than the questions about the ANOM devices, given the dearth of information that I have about them and the s 136 direction in place in respect of the transcripts.

114    The Applicant also relies upon the words used, considered in their setting and in light of the demeanour of the witness. I have taken all of those matters into account. While I agree that the Respondent’s demeanour is not impressive – he is occasionally belligerent and aggressive – I am unable to identify characteristics that lead me to conclude that he is lying in his response to the questions the subject of the first charge. In particular, the questions around the ANOM device are repetitious, and one might expect a witness providing consistent responses to have a flat or repetitive affect.

115    Having considered all of the matters, I am not persuaded beyond reasonable doubt that a person in the Respondent’s position must have had a recollection of the matters the subject of the first question. There are insufficient details for me to conclude that the Respondent’s understanding of what obtaining an ANOM device entailed, included features so memorable that it is not reasonably possible for the Respondent to have no recollection of whether or not he had done so. It follows that I am not satisfied beyond reasonable doubt that the response was false and proffered merely to ‘fob off’ the enquiry.

116    Accordingly, I am not satisfied that the Applicant has discharged its burden in respect of the first charge.

The Second Charge

117    The second charge is:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before the Applicant, you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the ACC Act.

118    The particulars to the second charge are that the Applicant required that the Respondent answer the following question:

[H]ave you ever used an ANOM device?

119    The Respondent replied:

Not that I recall.

120    The meaning of the Respondent’s answer is disputed. The Respondent argues that this answer should be read as ‘No, because I do not recall’. I do not agree. The Respondent’s answer is simply that he does not have a memory of using an ANOM device. It could be that he is preserving the possibility that he has done so, but at a time or place that he does not recall (or without realising that it was an ANOM device). That is close to, but distinct from, a negative response to the question.

121    Much of the analysis relevant to charge one is equally applicable to charge two. The analysis of the inherent implausibility of the response depends upon having some information about how memorable the Respondent understood it to be to use an ANOM device, particularly because the question is not restricted in time. Without repeating that analysis set out in relation to the first charge, there is a lack of evidence about:

(1)    what using an ANOM device was like (i.e. how memorable it was to use);

(2)    when the ANOM device could have been used by the Respondent, or when it was used by the Respondent, i.e. there is no evidence that IDN24 used an ANOM device once or a thousand times, recently or in the distant past. No attempt was made to refresh the Respondent’s memory as to when he might have used an ANOM device (contrast with Walker where the witness’s memory was refreshed by reviewing a tape of the meeting the subject of the question).

122    There is little information about what makes it memorable to use an ANOM device, particularly if one accepts (as I do) that the question is not confined to a dedicated encrypted device or a specific phone that was a dedicated encrypted device that does not receive other applications.

123    In the circumstances, I am not able to exclude the reasonable possibility that the Respondent did not recall ever using an ANOM device. That may be because he believed he had not done so, or because he simply couldn’t recall whether he had or had not done so.

124    That being the case, the Applicant has failed to discharge its burden in respect of the second charge. It will be dismissed.

The Third Charge

125    The third charge is:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before the Applicant, you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the ACC Act

126    The particulars to the third charge are that the Applicant required that the Respondent answer the following question:

[H]ave you ever had access to, seen or used an ANOM device?

127    The Respondent replied:

No, I do not recall that.

128    The Applicant argues that I should read this answer as being simply ‘I do not recall that’ and that the word ‘No’ is mere verbiage.

129    There are two parts to the third charge which are worth noting. First, the question is very broad as it is not confined in time or place. Secondly, it is a composite question containing three separate limbs, rolled up into one question. The question asks whether IDN24 has ever had access to, seen or used an ANOM device. At its broadest, the Respondent was being asked whether he had ever seen an ANOM device. Given the breadth of the question, and the lack of evidence about the memorability of having seen or had access to an ANOM device, I am not satisfied that he must have had a recollection one way or the other. Of course, if there was evidence that the Respondent had ever had access to, seen or used an ANOM device, the analysis might be different. That is not the present case.

130    It follows that if the answer was, ‘I do not recall’, I would conclude that it had not been established beyond reasonable doubt on the evidence before me that this answer was false, and provided in order to ‘fob off’ enquiry.

131    In the event, I consider that the better view is that the response ‘[n]o, I do not recall that’, when understood in context, is a negative response to the question. That is: the witness has answered the question in the negative, and explained that the reason his answer is ‘no’ is because he did not have a memory of it happening. Accordingly, the answer is not a ‘failure to answer’ in the sense required by s 34A(a)(ii). An answer was given in the negative. When asked whether this view was open to me, Senior Counsel for the Applicant submitted that it was open, but not preferable when understood in context.

132    Accordingly, for both of the reasons identified above, I do not consider that the third charge is established. It must therefore be dismissed.

The Fourth Charge

133    The fourth charge is:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before the Applicant, you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the ACC Act.

134    The particulars to the fourth charge are that the Applicant required that the Respondent answer the following question:

Did you use an ANOM device or devices between December twenty eighteen (2018) and November twenty twenty (2020)?

135    The Respondent replied:

I do not recall.

136    The Fourth Charge is a question that specifies a particular time-period. I am also satisfied that it is not, properly understood, a negative response to the question.

137    I have carefully watched the recording of the First and Second Examination. The Respondent is not an impressive witness. He affects indignation at being asked questions. He becomes unnecessarily aggressive when asked entirely appropriate questions by Counsel Assisting.

138    While I have significant reservations about the credibility of IDN24, those reservations are not sufficient to conclude that he did recall the answer to the question and intended, by his response, to leave it unanswered. In reaching that conclusion, I have considered whether it is inherently implausible for the Respondent to have no recollection one way or the other. The matters relied upon by the Applicant in relation to this question include those relied upon in respect of the first charge and include the matters set out at [111(1) – (3)] above.

139    In the fourth charge, the Respondent was asked the question in [REDACTED]. He was being asked about a specific period. The period in question was between three and five years before his examination. In Walker the period was five months. It does not seem to me to be inherently implausible that a person is not able to recall what particular communications devices they were using between three and five years before being questioned.

140    Moreover, the questions become repetitious, and so a reasonable explanation for an answer being given without apparent hesitation or with a flat affect is that he is repeating answers already provided.

141    The Applicant relies upon the fact that in response to an earlier question identical to the question the subject of the fourth charge, the Respondent asked to have the dates of the question clarified. The Applicant argues that if the Respondent truly did not recall whether or not he had used an ANOM device (for example), then the time period would not matter. I am not persuaded by that argument. It is not uncommon for a witness to want to completely hear and understand the question. I do not consider that seeking the clarification of a question leads to an inference of the kind for which the Applicant contends.

142    Accordingly, the fourth charge ought to be dismissed.

The Fifth Charge

143    The fifth charge is:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before the Applicant, you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the ACC Act.

144    The particulars to the fifth charge are that the Applicant required that the Respondent answer the following question:

Did you discuss the importation of illicit tobacco and/or border-controlled drugs on the ANOM platform?

145     The Respondent replied:

No, I don’t recall.

146    In this question, Counsel Assisting refers to the ‘ANOM platform’ rather than an ‘ANOM device’. An ordinary understanding of the question would be that it is directed to whether a particular communications platform has been used to discuss a particular topic. Even more strongly than in relation to the charges concerning an ‘ANOM device’, I do not consider that this question can be reasonably construed as referring to a specific phone that was a dedicated encrypted device that doesn’t receive other applications, nor that that understanding should be imputed to IDN24.

147    Once again, the question is reasonably broad, and there is no time period within which the discussions about illicit tobacco or border-controlled drugs were discussed. I do not know whether such matters were commonly discussed by the Respondent so that doing so on this particular platform was not memorable. In the absence of evidence regarding memorability of communicating via an ANOM device (or on the ‘ANOM platform’), or the topic more broadly, it is difficult to assess how inherently implausible it is that the witness did recall the answer to the question. I would therefore conclude that I cannot be satisfied to the requisite standard that the answer was false.

148    In any event, the response to the question is not ‘I do not recall’; rather, it is ‘[n]o, I don’t recall’. Considered in its full context, I accept the Respondent’s submission that the answer to this question is a response that means ‘no, because I do not recall it occurring’. It follows from this conclusion that the response was not a failure to answer the question for the purposes of s 34A(a)(ii).

149    Accordingly, I dismiss the fifth charge.

The Sixth Charge

150    The sixth charge is:

On [REDACTED] at Melbourne in the State of Victoria, when appearing as a witness at an examination before the Applicant, you refused or failed to answer a question that you were required to answer by the Applicant, contrary to s 34A(a)(ii) of the ACC Act

151    The particulars to the sixth charge are that the Applicant required that the Respondent answer the following question:

Did you discuss the profits you made from the importation of illicit tobacco on the ANOM platform?

152     The Respondent replied:

I do not recall.

153    The sixth charge differs from the fifth insofar as it does not contain the initial negative, and thus is purely an assertion that the Respondent fails to recall whether or not he ever discussed the profits he made from the importation of illicit tobacco on the ANOM platform. If I am satisfied that it is false, and was given to ‘fob off’ enquiry, then it could constitute a failure to answer by prevarication.

154    The use of the term ‘platform’ in this question detracts from the Applicant’s assertion that I should in all circumstances understand the question as referring to ‘specific phone that was a dedicated encrypted device that doesn’t receive other applications’. I am fortified in this conclusion by the undoubtedly correct exhortation by the Applicant that I am to consider the entirety of the evidence, and not to take a granular approach to particular questions or parts of the Examinations.

155    By this stage in the Second Examination, the Respondent had answered a number of questions about ANOM devices or the ANOM platform. He had repeated variations on the same responses a number of times. That does not detract from his obligation to give truthful answers but it may explain the somewhat flat affect in the provision of his answers.

156    Once again, I am not satisfied beyond reasonable doubt that IDN24 did recall whether or not he had discussed the profits he had made from the importation of illicit tobacco on the ANOM platform. There is no evidence about how long ago such discussions are said to have taken place, and no evidence about things that would make it memorable. This can be contrasted (by way of example) with the situation in Walker, where the witness was given ample opportunity to refresh his memory by reviewing footage of his attendance on the impugned meeting that had taken place only five months earlier in the company of his brother.

157    This case is different. It might be argued that it is memorable to discuss illegal tobacco. In Walker it is said to be memorable for a police officer to be accused of corrupt conduct. I do not have any information about the background of IDN24 and whether or not a person in his position would be ‘shocked’ to be accused of discussing illegal tobacco, as was the case in Walker.

158    There is a bald assertion by Counsel Assisting that the Respondent was a registered user of the ANOM platform, but that assertion was admitted into evidence subject to a limited use direction under s 136. The case was expressly put on the basis that there was no evidence as to any ANOM use by the Respondent. It depended upon the inherent implausibility of a person with a normally functioning memory failing to recall the answer to the question one way or another. I have not been able to reach that conclusion in the absence of information or evidence about the circumstances that would make the exchange memorable. It follows that the Applicant has failed to discharge its burden and the sixth charge will be dismissed.

Conclusion

159    The Applicant submitted by way of post-hearing written submissions that, if it was accepted that IDN24’s response to the second, third and fifth charged questions was effectively ‘no’, then this would strengthen, not weaken, the case against the Respondent on charges one, four and six.

160    I have found that the responses to the third and fifth charges were effectively ‘no’.

161    The Applicant argues (for example) that, if this is the case, the response to the sixth charge should have been: ‘No, I could not have discussed illicit tobacco on the ANOM platform, because I have not used the ANOM platform.’ There is some force in this submission. However, negative responses by IDN24 are not logically inconsistent with other failures to recall because the Respondent may have answered in the negative on the basis that he did not recall the events taking place. Once again, we are concerned here with ordinary human language. Even allowing for the importance of responding with care when under oath, one does not expect to see the precision we see in a statute or contract. Any alleged inconsistency between answers could have been clarified by Counsel Assisting in the course of the Examinations. That did not occur.

162    The Respondent was not an impressive witness. However, the Applicant has failed to discharge its burden in respect of the six charges. Accordingly, each of the six charges will be dismissed. I will hear the parties on costs.

Associate:

Dated:    19 March 2025