Anderson v BYF19

Background 14 [REDACTED] 15 [REDACTED] 16 [REDACTED] 17 [REDACTED] 18 [REDACTED] 19 [REDACTED] 20 [REDACTED] 21 [REDACTED] 22 [REDACTED] 23 On [REDACTED], the respondent participated in an interview with Police, at the conclusion of which the respondent was charged with a money laundering offence, namely, dealing with money or property reasonably suspected of being proceeds of crime, greater than $1,000,000 in value contrary to s 400.3(2) of the Criminal Code. That same day at about 7.20pm, the Police executed a search warrant at the respondent's premises, during which they seized various items including a Samsung mobile phone and Australian Tax office documents in relation to a Trust Account in the respondent's name. The Police found no ledgers, scales, drugs, large sums of cash, indicia of drug manufacture or drug supply. 24 As noted above, on 21 June 2017, the board of ACIC by resolution, commenced the relevant investigation under the HRED3 Determination. 25 On [REDACTED], the respondent was committed for sentence to the Sydney District Court in relation to the offence of dealing with money reasonably suspected of being the proceeds of crime greater than $100,000, contrary to s 400.9 of the Criminal Code. This is a lesser offence than that which the respondent was originally charged. 26 [REDACTED] 27 On 8 October 2018, a summons was issued to the respondent to appear as a witness before the ACIC on 25 October 2018. The summons stated that he was to be questioned about matters, inter alia, relevant to money laundering offences and serious drug offences in relation to HRED3 and Project Baystone. 28 The purpose of the examination of the respondent was described in the evidence as follows: [REDACTED] 29 On 25 October 2018, in accordance with the summons, the respondent attended the examination, represented by counsel and a solicitor. The respondent was advised that the examination was conducted in private, and took an oath in terms approved by the applicant. The applicant also offered the respondent the opportunity to claim the protection against self-incrimination under s 30(5) of the ACC Act. The respondent accepted the offer of the protection against self-incrimination and the applicant made an order under that provision. 30 After some preliminary questions, the applicant asked the respondent if there were any issues he wanted to raise in relation to the proceedings before they started the investigative questioning, and the following exchange occurred: Respondent: I just want to make clear that I'm fearful for my family, family safety and I'd like to not answer any questions today. Applicant: So what's the, what fear to do you have for your family's safety? Respondent: I have a fear that my wife and [REDACTED] child might be harmed if any evidence I give is, can incriminate anything else. Applicant: Well the evidence that you give here stays here. Respondent: Yeah, I, but if it's going to incriminate somebody else, I'm fearful of [my] family's safety. Applicant: No answer would be used by the Commission in such a way as another person would be able to say, the only person who gave that evidence must have been [BYF19]. Respondent: I still, I'm still fearful of my safety of my family. Applicant: That won't be a good enough, Respondent: I understand the, Applicant: Excuse. I'm going to ask you questions, Respondent: Yes. Applicant: And you will be required to answer. Respondent: Yeah, I understand the ramifications. 31 The respondent confirmed during the examination that other than his lawyers, he had not told anyone that he was attending the ACIC examination. 32 The respondent did participate in some questioning regarding his family circumstances, his address, the names of his wife and child, his occupation, his employment, his business interests, work associates, details about his work associates, and whether these associates were involved in drugs, including questions being asked about [REDACTED], who was identified during the interview as a friend of the respondent, and an individual called [REDACTED]. However, during the examination on 25 October 2018 the respondent refused to answer a number of questions, many of which, the applicant indicated at the time were "material to the work that the Commission [was] doing." 33 The applicant informed the respondent that it was his view that the respondent was in contempt of the ACIC. The applicant adjourned the examination to give the respondent the opportunity to obtain legal advice. Shortly after resumption of the examination, it was adjourned until 4 December 2018 on the request of counsel assisting the applicant. Due to personal reasons, the applicant was unable to proceed with the hearing on 4 December 2018, and the examination date was varied on two occasions, being finally set to proceed on 14 December 2018. 34 On 14 December 2018, the respondent attended the examination, represented by counsel and a solicitor, and was advised that his obligations pursuant to the oath and the protections from the order made by the applicant on 25 October 2018 (in relation to the privilege against self-incrimination) continued. 35 During the examination on 14 December 2018, the respondent refused to answer six questions, which are the subject of the application to this Court. The relevant questions and responses in the examination are as follows (emphasis added): Question 1: To whom did the [REDACTED] belong? Counsel assisting: On [REDACTED] were you arrested at Sydney Airport in possession of [REDACTED]? Respondent: Yes. Counsel assisting: And who did that [REDACTED] [belong] to? Respondent: I refuse to answer. Counsel assisting: Is there a reason why you refuse to answer? Respondent: On the basis that I fear for the safety of myself and my family. Counsel assisting: Can you articulate the nature of that fear for your safety? Respondent: I don't know what would happen if I was to say something, it's in my family, I've got a [REDACTED]baby, I can't put him in any sort of risk, same as my wife. Counsel assisting: Why do you fear that your baby or yourself or your wife are at risk? Respondent: I just feel like as if they would be at risk if I was to say anything. Counsel assisting: Can you articulate any specific threats that have been made against yourself or members of your family? Respondent: Not at this stage, no. Examiner: I told you on the last occasion when you said that [BYF19], that these and I in fact said my opening remarks to you on that occasion that these proceedings are conducted in private and that the evidence taken is not made available publicly in any way and that there is no likelihood of any person to whom you may refer in the giving of your evidence being asked a question that would lead that person to infer that the only possible way that the information about which, around which the question was framed came from you. Do you remember I said that to you? Respondent: I do remember, yes. Examiner: I say the same thing to you again. So that a general expressed view in the form that you have just expressed in the absence of anything particularised is simply insufficient having regard to the safeguards that are in place within the Commission to secure evidence that's given to it. Respondent: I understand. Question 2: Who were you delivering the [REDACTED] to? Counsel assisting: Had you not been arrested, [BYF19], who were you delivering the [REDACTED] to? Respondent: I refuse to answer that. Examiner: That's a question I require you to answer [BYF19] because it's a question that's material to the work that the Commission is presently doing. Respondent: I understand but I still refuse. Question 3: Who did that Blackberry belong to? Counsel assisting: You [were] also arrested in possession of a Blackberry, is that correct? Respondent: Yes. Counsel assisting: Who did that Blackberry belong to? Respondent: It was, I refuse to answer. Question 4: From whom or from where did you acquire that phone? Examiner: That was a Blackberry that you had with you travelling from [REDACTED]? Respondent: Yes. Examiner: Did you have it with you when you went from Sydney to [REDACTED]? Respondent: Yes. Examiner: And from whom or from where did you acquire that phone? Respondent: I refuse to answer. Examiner: Again, that is a question that's material to the work the Commission is doing. Respondent: I understand. Examiner: And I require you to say from whom you acquired the phone. Respondent: I still, I understand but I refuse for the safety of my family. Question 5: From where [REDACTED] did you pick up the money? Counsel assisting: Whereabouts [REDACTED] did you pick up the money from? Respondent: I refuse to answer that question also. Examiner: Well again that, of course is obviously material to the work the Commission is doing. Respondent: I understand. Examiner: And I require you to answer where it was that, where was, what was the location from which you obtained the funds that were subsequently found in Sydney. Respondent: I refuse to answer on the safety fact, of myself, safety for my family Question 6: Where did you go in the hire car? Examiner: Are you, when you went [REDACTED] you hired a car, is that correct? Respondent: Yes. Examiner: And that car did [REDACTED] before you returned to the airport. Where did you go from the airport in that car? Respondent: I refuse again. Examiner: Again, that's a question that is material to the work that the Commission is doing and I require you to answer. Respondent: I understand but I refuse. 36 As is apparent from the transcript excerpts above, in relation to these questions the only reason given by the respondent for refusing to answer was that he was in fear for the safety of himself and his family, and when asked whether he could articulate any specific threats of harm that had been made to him or his family, his response was - "[n]ot at this stage, no". 37 Further, the respondent gave evidence that he had not communicated with anyone as a result of his failure to "complete the task" of delivering the [REDACTED], and that since his arrest nobody involved with the [REDACTED] had approached him or his family in relation to it. 38 The applicant explained to the respondent that the questions that the respondent was required to answer were material to the work that the ACIC was doing. The applicant also reminded the respondent that the proceedings were being conducted in private and there was no likelihood of any person to whom the respondent might refer in giving evidence being asked a question that would lead to his identification. 39 The applicant informed the respondent again that his refusal to answer questions may well constitute contempt of the ACIC. The applicant adjourned the examination to give the respondent the opportunity to obtain legal advice. Having taken legal advice the respondent confirmed that he continued to refuse to answer the questions which the applicant required him to answer. As a result, the respondent was informed that it was the applicant's opinion that he was in contempt of the ACIC, and that the applicant proposed to make an application to the Federal Court that he be dealt with in relation to the contempt. 40 The applicant made a confidentiality direction under s 25A(9)(b) and the ACC Act. 41 The hearing was adjourned pending these proceedings.