Anderson v DKH18

Federal Court of Australia|2018-10-19|Before: White J

The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) on 6 June 2018, he refused to answer six questions which the examiner required him to answer.

The Respondent be imprisoned until further order.
A warrant for the Respondent's committal to prison be issued.
There be liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 By s 34A(a)(ii) of the Australian Crime Commission Act 2002 (Cth) (the ACC Act), persons appearing as witnesses at an examination before an examiner pursuant to s 24A are in contempt of the Australian Criminal Intelligence Commission (ACIC) if they refuse or fail to answer a question which they are required by the examiner to answer. Section 34B of the ACC Act empowers this Court to deal with contemnors of the ACIC as if their conduct constituted a contempt of this Court. 2 The Respondent admits that he was in contempt of the ACIC on 6 June 2018 by failing to answer six questions put to him during an examination pursuant to s 24A of the ACC Act. The Applicant, who is the examiner, applies for him to be dealt with for those contempts pursuant to s 34B.

The statutory and regulatory setting 3 The ACIC is established by s 7 of the ACC Act. One of its functions is to investigate, when authorised by its Board, matters relating to "federally relevant criminal activity" (s 7A(c)). By s 7C(1)(c) of the ACC Act, one of the functions of the ACIC Board is to authorise the ACIC to undertake intelligence operations relating to "federally relevant criminal activity". 4 On 4 September 2013, the Board of ACIC (then known as the Australian Crime Commission) issued a determination pursuant to s 7C entitled "Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motorcycle Gangs) 2013" (the 2013 Determination). The effect of the determination was to authorise the ACIC to undertake intelligence operations concerning criminal activity by "Outlaw Motor Cycle Gangs" (OMCGs) in relation to illicit drugs. Clause 6(c) of the 2013 Determination specified that the intelligence operation was a "special operation" as contemplated by s 7C(1)(d) of the ACC Act. 5 By an instrument made on 8 June 2016 entitled "Australian Crime Commission Special Operation Authorisation and Determination (Outlaw Motorcycle Gangs) Amendment No. 1 of 2016 (the 2016 Determination), the Board amended the 2013 Determination by extending its duration. 6 An important means by which the ACIC obtains information in undertaking a special intelligence operation is the examination of persons by examiners appointed for the purpose. As indicated, the present Applicant is such an examiner. 7 By s 28 of the ACC Act, examiners may summons persons to appear before them at an examination to give evidence and/or produce any documents or other things referred to in the summons. 8 Section 30 provides that a person served with a summons to appear as a witness at an examination before an examiner must not fail to attend as required by the summons. Section 30(2) provides (relevantly): A person appearing as a witness at an examination before an examiner shall not: (a) … (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) …

The Respondent's contempts 9 On 30 May 2018, the Applicant issued a summons under s 28 of the ACC Act directed to the Respondent. The summons required him to attend forthwith to give evidence in an examination before the Applicant. 10 The summons was served by a member of the ACIC staff on the Respondent at approximately 8.15 am on 6 June 2018. The staff member was accompanied by seven ACIC staff members, one of whom was a uniformed police officer from SAPOL. At the same time, the officers executed a search warrant issued pursuant to s 22 of the ACC Act. They seized a number of mobile phone and Blackberry devices. 11 In pursuance of the summons, the Respondent attended at the premises of the ACIC with his solicitor at about 11 am that same day. The examination commenced at approximately 11.48 am. The Respondent made an affirmation in an approved form, and the Applicant informed him of some matters of a formal kind. 12 The Respondent's solicitor then raised a concern of the Respondent about his personal safety, which he said arose from the manner in which the summons had been served. I will refer to this in more detail shortly. The solicitor told the Applicant that the Respondent would not answer questions "because he feels that he has been put in danger". This was before the Respondent had been required to answer any questions and before he had been told the proposed subject matter of the examination. 13 The examination then proceeded. The Respondent answered questions concerning his identity, the place he was staying in Adelaide and his residence. Counsel assisting the examiner then asked the Respondent questions concerning the devices seized that morning, pursuant to the search warrant, at the place at which the Respondent was staying. The Respondent refused to answer those questions. The relevant questions and responses in the examination are as follows:

White Blackberry Counsel assisting: This [white Blackberry] I'm instructed was located on your bedside table and was switched on at the time that it was seized. Is this your Blackberry? Respondent: I don't wish to answer any questions in relation to that Blackberry on the basis that [my solicitor] has explained. Applicant: I require you to answer the questions … so the question I require you to answer is whether the Blackberry that was located on the beside table was your Blackberry? Respondent: As I said on the basis [my solicitor] has explained I don't wish to answer any questions at this stage. Applicant: Alright. You understand that what I said to [your solicitor] before in that I would require you to answer those questions. Respondent: Yes I do. Applicant: Right and you understand that refusing to answer may … amount to a contempt of the Commission? Respondent: Yes I do.

Black Nokia phone Counsel assisting: There is a small black Nokia device which I'm instructed was also located by, in the bedroom of the … address and was turned on at the time that it was seized by the Commission. Is the black Nokia phone that was located on the bedside table your Nokia phone? Respondent: Again, I don't wish to answer any questions on the basis that [my solicitor] has explained. Applicant: I require you to answer the question as to whether the black Nokia phone found on the bedside table was, is your phone? Respondent: Yes, I understand that Sir. Applicant: Do I take that as a refusal to answer? Respondent: Yes Sir.

White large screen Nokia phone Counsel assisting: A white large screen Nokia phone which I'm instructed was located on the kitchen bench connected to a charger and was turned on at the time it was seized by the Commission. Is that your white Nokia phone? Respondent: I don't wish to answer on the basis as [my solicitor] has explained. Applicant: I require you to answer the question as to whether the white Nokia phone that has just been displayed to you and which was found on the kitchen bench during the search is your phone. Respondent: Yes, I understand that. Applicant: Do you refuse to answer? Respondent: Yes Sir.

Black Samsung phone Counsel assisting: The black Samsung telephone that was also on the kitchen bench at the time the search warrant was executed and it was on the charger switched on. Is the black Samsung phone that was located there yours? Respondent: As previously, I don't wish to answer that question on the basis that was explained. Applicant: I require you to answer the question as to whether the black Samsung phone just shown to you is yours. Respondent: Yes, I refuse to answer. Applicant: You refuse to answer? Very well. Respondent: I decline to answer. Applicant: No. Respondent: Or refuse, either which way.

Samsung Galaxy J5 Pro Counsel assisting: There was a brand new in a box Samsung Galaxy J5 Pro, it's a blue box. It was located on the kitchen bench today at the time the search warrant was executed and it was seized by the Commission. Is that telephone in that box, does that belong to you? Respondent: Yeah, no, I refuse to answer on the same basis. Applicant: I require you to answer the question as to whether the telephone just described to you … J5 Pro Samsung located in the search this morning is your phone? Respondent: Yes, I understand Sir. Applicant: You refuse to answer? Respondent: Yes Sir.

New Blackberry phone Counsel assisting: So located in the lounge room on a table there was a black cardboard box that is marked Blackberry Powered by Android which appears to be a new Blackberry phone. Is that box and that device, does that belong to you? Respondent: I don't wish to answer that one. Applicant: I require you … to answer the question as to whether the box black, the new Blackberry phone is your phone. Respondent: Yes Sir, I understand that, I refuse to answer. 14 The Applicant then informed the Respondent that he would consider whether he was in contempt of the Commission and adjourned the examination until 2 pm that same day. Before the adjournment, the Applicant drew the Respondent's solicitor's attention to three decisions of various courts concerning contempt. 15 When the examination resumed at 2 pm, the Respondent told the Applicant that he maintained his refusal to answer the questions concerning the devices. The Applicant informed the Respondent that he would apply to have him dealt with for contempt of the ACIC.

The charged contempts 16 On 29 June 2018, the Applicant commenced the present proceedings. The Statement of Charge accompanying the application alleges six contempts, constituted by the Respondent's refusal to answer the questions concerning the six items. 17 The trial of the charges was listed for 5 October 2018. However, on 3 October 2018, the Respondent's counsel informed the Court that he would acknowledge his contempts, with the consequence that the hearing would concern only the imposition of penalty. This was confirmed at the commencement of the hearing on 5 October 2018 when senior counsel entered pleas of guilty on the Respondent's behalf to each charge.

The seriousness of the Respondent's conduct 18 A number of matters indicate the seriousness of the Respondent's conduct. I will refer to those matters before addressing the matters advanced on the Respondent's behalf in mitigation. 19 The Applicant has deposed that the special intelligence operation is ongoing and is a significant part of the ACIC's ongoing intelligence function. The Applicant has also deposed that a prolonged delay in the continuation of the examination has already impacted adversely, and will continue to do so, on the ACIC's ability to obtain and analyse current intelligence relating to the special operation. The Respondent did not dispute either of these matters, and I accept them. I am satisfied that the Respondent's conduct has frustrated and impeded the examination and, in turn, the progress of the ACIC investigation. 20 In addition, the Applicant told the Respondent on 6 June 2018 that the questions which he refused to answer were all material to ACIC's work and that, for operational reasons, it was necessary for the examination to proceed that day. Furthermore, the Applicant told the Respondent that he was willing to grant an adjournment of the examination after the Respondent had answered questions regarding the devices which had been seized. 21 The Applicant warned the Respondent both before and after he refused to answer the questions that his refusal could constitute a contempt of the Commission and, as previously noted, the Applicant referred the Respondent's solicitor to three decisions by various courts concerning contempts. 22 The Respondent's conduct appears to have been pre-determined. He had been able to take advice from his solicitor and his solicitor indicated that he would refuse to answer questions even before he knew the subject matter of the questions. The Respondent also had the opportunity to reflect on the seriousness of his conduct during the period of the adjournment which the Applicant allowed. Accordingly, his conduct cannot be regarded as resulting from an ill-considered or uninformed decision. 23 The Respondent has made no attempt to purge his contempts since 6 June 2018. I will refer shortly to a submission to the contrary made by the Respondent's counsel but indicate now that I do not accept that submission. 24 A number of the authorities bear out the seriousness with which conduct of the present kind is viewed. In Von Doussa v Owens (No 3) (1982) 31 SASR 116, the contempt of the defendant consisted of a failure to comply with an order of the Full Court of the Supreme Court of South Australia which required him to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ (with whom Zelling and Wells JJ agreed) said, at 117-8: The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a court of law or before some other tribunal or authority which Parliament has empowered to compel answers. No private undertaking can be regarded as an excuse for failure to comply with that legal obligation. This investigation is still in progress in that the inspector has not, we are told, lodged his report, and the applicant still has the opportunity to purge his contempt by giving the answers required. His continuing non-compliance with the Court's order to do so amounts to a deliberate and considered persistent defiance of the authority of the law. It cannot be condoned or tolerated. … It is to be emphasised that [the] answers were sought not in any private litigation between citizens but in the course of an investigation authorised and established pursuant to the powers conferred by an Act of Parliament in the public interest. The Court must do what it can to prevail upon the applicant to see the matter in a clearer light and to comply with his legal obligation. 25 King CJ referred with approval to a statement of Mitchell J that, if witnesses were able to gain the impression that information sought by an inspector could be withheld "by the mere payment of a tariff", investigations may well prove completely ineffective, at 118. 26 A statement of Moffitt P in Thelander v Woodward [1981] 1 NSWLR 644 at 646 is to like effect: Where appropriate, the sanctions of contempt and a charge under s 21 should be pursued with vigour and expedition. Indeed unless this is done an inquiry is at risk of becoming a lame one, which does not reach out to the leaders or the central planning of crime. 27 In Hannaford v HH [2010] FCA 1214; (2010) 205 A Crim R 366, Dodds-Streeton J noted: [57] While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach. Dodds-Streeton J also noted, at [59], that a primary objective of the legislation enabling this Court to deal with contempts of the ACIC was "the introduction of a compelling incentive for an unco-operative witness to co-operate in a timely way, by providing the information sought while it remains useful for the ACC's purposes". 28 See also the authorities summarised by Buddin J in Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1183; (2006) 166 A Crim R 393 at [26]-[31]. 29 The matters relevant to sentencing for contempt have been summarised in a number of the authorities and include: (i) the seriousness of the contempt; (ii) whether contemnors are aware of the consequences for themselves of the conduct; (iii) the actual consequences of the contempt on the relevant trial or inquiry; (iv) whether the contempt was committed in the context of serious crime; (v) the reason for the contempt; (vi) whether the contemnor has received any benefit by indicating an intention to give evidence; (vii) whether there has been any apology or public expression of contrition; (viii) the character and antecedents of the contemnor; (ix) general and personal deterrence; and (x) denunciation of the contempt. See, for example, Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185; Hannaford v HH (No 2) [2012] FCA 560, (2012) 203 FCR 501 at [27]; and Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83, (2006) 149 FCR 494 at [25]. In addition, the coercion of the contemnor in a context like the present is a particularly important consideration. 30 In Hughes v Australian Competition and Consumer Commission [2004] FCAFC 319; (2004) 247 FCR 277, the Full Court at [55] endorsed the statement of Nicholson J in Australian Competition and Consumer Commission v INFO4PC.com Pty Ltd [2002] FCA 949, (2002) 121 FCR 24 at [138] as to the range of penalties available to the court in punishing for contempt, namely: to: (a) commit a contemnor to prison for an indefinite period of time; (b) to impose a fine for a wilful breach of an order or undertaking; (c) to impose a daily fine; (d) to order the sequestration of the assets of a contemnor; and (e) to suspend on condition any sentence of imprisonment that it might impose in respect to contempt. 31 In Anderson v XLVII [2015] FCA 19; (2015) 319 ALR 139 at [49], I summarised some principles bearing upon the fixation of an appropriate penalty for a contempt of the ACC constituted by a refusal to answer questions. It is convenient to repeat that summary presently: (1) A principal purpose of the enactment of ss 34A-34F was to provide the ACC with a means of dealing with uncooperative witnesses which was quicker than the conventional prosecution process. In the explanatory memorandum for the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) the Minister said: Allowing an examiner to refer a person to a Court to be dealt with for contempt will provide a swift mechanism for dealing with uncooperative witnesses as contempt proceedings bring with them the threat of immediate detention. It is anticipated that the new contempt provisions will motivate an uncooperative witness to reconsider his or her position and comply with the requirements of an examination, and avoid the immediate threat of detention. (2) The purposes of punishment for a contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry are said to be retribution for the contempt, coercion of the person into answering the question, and the deterrence of others: Wood v Galea (1995) 79 A Crim R 567 at 571; Von Doussa v Owens (No 3) (1982) 31 SASR 116 at 118; Hannaford v HH [2010] FCA 1214, (2010) 205 A Crim R 366 at [39]; (3) A contempt constituted by a refusal to answer questions in a Court or Commission of Enquiry is usually to be regarded as a serious contempt. As King CJ observed in Von Doussa v Owens (No 3) at 117-8: The effectiveness of the administration of justice depends upon compliance by witnesses with the legal obligation to answer relevant questions. This is so whether the proceedings are in a Court of law or before some other tribunal or authority which Parliament has empowered to compel answers. (4) Because of the importance of the element of coercion, an order for imprisonment for an indefinite period will often be appropriate: Wood v Galea at 573; Von Doussa v Owens (No 3); Hannaford v HH at [60]-[63]; Royal Commissioner v Staunton (Unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) at [26]-[27]. (5) However, coercion is inappropriate if the person has purged his or her contempt, or if it is no longer necessary to obtain answers to the questions giving rise to the contempt: Wood v Galea at 573. 32 The purposes of coercion, punishment and deterrence are particularly important in this case. 33 It is commonplace for sentences of imprisonment to be imposed for contempts of the present kind, including sentences of indefinite duration. See, for example, Von Doussa v Owens (No 3); Wood, Honourable Justice v Galea [1995] NSWSC 100 at [31]; Royal Commission v Staunton [1995] NSWSC 45 at [27]-[28]; Hannaford v HH [2010] FCA 1214, (2010) 205 A Crim R 366 at [63]; Sage v ZZ (No 2) [2015] FCA 450, (2015) 234 FCR 251. 34 The Respondent recognised that, in the circumstances of his case, a custodial sentence is appropriate. His senior counsel submitted, however, that any such sentence should be for a fixed term and that a form of suspension was appropriate.

The Respondent's explanation 35 The Respondent is a member of a particular motor cycle club and a senior office holder in one of its chapters. 36 In his written submissions filed on 21 September 2018 in anticipation of the trial, the Respondent foreshadowed an assertion that his refusal to answer the questions in the examination had occurred at a time when he had been acting involuntarily, by reason of duress. However, he abandoned that claim two days before the hearing. 37 Nevertheless, the Respondent's counsel submitted that his reasons for not answering the questions in the examinations were directly relevant to the assessment of the seriousness of his contempt and that the matters bearing on the claimed duress indicated those reasons. 38 Essentially, the Respondent's claim is that he had been afraid for his own safety and that he had believed that his fears would be accommodated in some way by the Applicant. Senior counsel referred first to the circumstances in which the summons had been served on the Respondent on 6 June 2018. 39 It was an agreed fact that some of the ACIC staff members present at the time had been wearing clothing marked with the acronym "ACIC". It was also an agreed fact that the presence of the ACIC staff members had come to the attention of one neighbour, who had opened her apartment door to see what was happening. 40 Senior counsel suggested that others may also have seen the ACIC staff members, including the markings on their clothing. The submission did not indicate who those persons might be, but the inference was that they may have been other members of the Respondent's motor cycle club. 41 Senior counsel referred secondly to the circumstances in which the Respondent had been served with an ACIC summons on 2 September 2016. 42 The Respondent had then been travelling in a car with other members of this club when the car was stopped by members of the South Australian Police. The summons was served on the Respondent outside and to the rear of the vehicle. However, before the Respondent read the document and had become aware of its contents, he had provided it to one of the other occupants of the car. It was that occupant who had told him (in the presence of others) that he had been summoned to appear for examination by the ACIC on 8 September 2016. 43 On 5 September 2016, an officer of the ACIC contacted the Respondent by telephone and they had a conversation about the proposed examination. The Respondent says (and the Applicant does not dispute) that between 2 and 8 September 2016 members of the motor cycle club asked him questions about the summons and whether he would answer questions put in the examination. 44 A transcript of the examination which occurred on 8 September 2016 was in evidence. It shows that the examination took place on 6 September, but it is an agreed fact that the examination occurred on 8 September 2016. The transcript indicates that the Respondent's solicitor (the same solicitor who attended the examination on 6 June 2018) made a number of submissions to the Applicant (who was the examiner on that occasion as well). These included: the Respondent's position had been "severely compromised" by the manner in which he had been brought before the ACIC; an ACIC task force member had served the summons on the Respondent by inserting it into a pocket inside his jacket, without telling him what it was or that there were any limitations on its disclosure; when the Respondent had resumed driving, he had given the document to another to read and was then told by an occupant of the car (a fellow club member) that he had been summoned to give evidence before the ACIC; the Respondent had answered the telephone call from the ACIC staff member on 5 September 2016 while travelling in a car with the phone on loudspeaker so that all the occupants in the car heard the conversation, including the part in which the staff member had stated her identity; the Respondent expected that "someone" would be watching the ACIC premises and would be noting the period of time during which he remained there; and the Respondent believed that he would be "in trouble" unless he left the ACIC premises fairly quickly. 45 The Applicant then discussed with counsel alternative means by which the expressed concerns of the Respondent could be allayed. Shortly afterwards, the Applicant adjourned the examination, saying that he did so "having regard to … what [your solicitor] has said on your behalf about your concerns as to your safety and that of your family". 46 Later, on 12 October 2016, the Applicant discharged the Respondent from further compliance with the summons. His reasons for doing so were not disclosed in the evidence. 47 The Respondent claimed, and the Applicant did not dispute, that between 2016 and 6 June 2018, he had periodically had been asked by members of his motor cycle club whether ACIC had been back to see him. He also claimed (and the Applicant did not dispute) that on 6 June 2018 he had believed that the ACIC premises would be under surveillance with respect to his attendance; that he would be asked by club members to explain why he had not responded to calls on the mobile phone or other devices; and that, because the search warrant receipt for the devices was headed "ACIC", he would not be able to produce that receipt by way of explanation without disclosing ACIC's interest in him. In a paragraph from his affidavit on which senior counsel did rely, the Respondent deposed that his solicitor had told him at lunch time on 6 June 2018 that club members were enquiring as to why he had not been answering his mobile or Blackberry devices nor been in contact with anyone from the motor cycle club. 48 The elements of senior counsel's submissions seemed to be these: (i) the Respondent had had an apprehension about his personal safety and that of his family in September 2016 arising from the awareness of fellow club members that the ACIC summons had been served on him and from the subsequent telephone contact; (ii) those concerns have been recognised by the Applicant in September 2016, and he had taken steps to allay them; (iii) the circumstances in which the summons had been served on 6 June 2018 gave rise to the same concerns; and (iv) the fact that the Respondent was unable to provide documentary evidence in support of his explanation for not answering the mobile phones or other devices added to his concerns about his personal safety. 49 Senior counsel submitted that these circumstances made understandable the Respondent's conduct on 6 June 2018. The submission was that the circumstances in which the Respondent found himself were not within his control or management. 50 Senior counsel for the Respondent also referred to authorities which indicate that, when a witness's reason for refusing to answer a required question is fear for his or her own safety or that of his or her own family, it is appropriate to moderate the penalty which would otherwise be appropriate: Principal Registrar v Tran at [36]; R v Razzak [2006] NSWSC 1366, (2006) 166 A Crim R 132 at [24]-[30], [59]-[65]. 51 I do not regard these matters as mitigating the seriousness of the Respondent's contempts. 52 There is no positive evidence from the Respondent that, on 6 June 2018, he had been concerned for his own safety or that of his family. The Respondent did not provide oral or affidavit evidence to that effect. Indeed, much was left to inference as to the source, nature and reason for the asserted apprehension. The implication was that the Respondent is at risk from his own club members but he did not make that claim expressly, let alone provide evidence to support it. 53 Senior counsel for the Applicant submitted that the Court ought not, having regard to a number of matters, proceed on the basis of inference. These included the senior (and by inference, influential) position which the Respondent holds in his club; the absence of pursuit by the Respondent of alternative means of avoiding being in contempt; the tenuous nature of the connection between the events in 2016 and 2018; and the absence of any evidence at all that anyone within the Respondent's club was, or had been, aware on 6 June 2018 of the execution of the search warrant or the service of the examination summons. In my view, those submissions have some force. To an extent they have additional force by reason that the Respondent did not give evidence himself about his apprehensions (and the basis for them). 54 The only evidence that anyone observed the attendance by the ACIC's staff members at the Respondent's residence on 6 June 2018 is that a neighbour opened her apartment door. There was no suggestion that that person has any connection with the Applicant's club. There is no basis upon which to conclude that anyone else with an interest in the Respondent was present, or even possibly present, in a position to have observed the execution of the warrant and the service of the summons. I note in this respect that it is an agreed fact that, after their entry into the Respondent's premises, the ACIC staff members spoke to the Respondent behind a closed door in his bedroom, in circumstances of privacy. There is no suggestion that anyone else was present in the residence at the time. 55 The matters to which the Respondent's solicitor referred the Applicant on 8 September 2016 did not arise above submission. Even now they remain matters of submission only. The Respondent chose not to provide evidence on affirmation concerning his claimed fear. 56 I accept that it is possible that the Respondent had thought on 6 June 2018 that, because the Applicant had provided him with some consideration in 2016, he would provide the same consideration on that occasion. However, the Applicant had made the position clear on 6 June 2018 by telling the Respondent that he would, after the Respondent had answered the questions regarding the seized items, grant an adjournment. Despite that indication of willingness by the Applicant to take account of his concerns, the Respondent maintained his refusal to answer any questions concerning the items.

Purging the contempt 57 Senior counsel's next submission was that the Respondent had purged his contempt, or at least gone a fair way to doing so. She relied for this purpose on a paragraph in the affidavit made by the Respondent in relation to the trial: [13] Mobile phones and Blackberry units issued by the club were seized. Because the raid was under a Crime Commission warrant the field receipt provided for the seizure was headed "Australian Crime and Intelligence Commission". From the time of seizure I was unable to respond to any contact on those units. 58 Senior counsel submitted that, by this paragraph, the Respondent had effectively answered the six questions and that this amounted to a purging of his contempt. 59 "Purging" a contempt is not a term of art. It is instead a convenient shorthand for the means by which a respondent may remedy the wrong constituted by the contempt, to the extent to which that is possible. Those means will vary according to the nature of the contempt. When the contempt consists of a failure to answer questions which the respondent is required to answer, and the proceeding or inquiry in which the questions were asked is ongoing, the conventional means of remedying the wrong is for the respondent to appear before the court, tribunal or examiner in question and to answer the questions. 60 Plainly, the Respondent has not engaged in conduct of that kind nor indicated an intention to do so. Equally plainly, para [13] of his affidavit does not amount to a purging of the Respondent's contempts. 61 Counsel's alternative submission was that the Respondent has, by indirect means, provided the information which was sought in the examination, and that this mitigated the seriousness of the contempt. Counsel submitted first that para [13] set out above provided an answer to the questions as to whether the various devices belonged to the Respondent. 62 This submission cannot be sustained. The first sentence contains no statement of ownership, let alone of possession. It states only (in indirect speech) that the mobiles and Blackberry units which were seized had been issued by "the club" (an undefined term). The sentence says nothing about the person or persons to whom the devices had been issued, let alone the Respondent's ownership or possession of them, or how they came to be in the place at which the Respondent was staying. 63 The second and third sentences in para [13] do not take the matter further. The third sentence contains the rather uninformative observation that, after the seizure of the phones, (that is after the Respondent ceased to have access to them), he had been unable to respond to calls on those units. 64 Senior counsel relied next on submissions made by the Respondent's solicitor to the Applicant on 6 June 2018: [The Respondent] raised with me in the break the fact that now for half of the day, he's not been contactable by either mobile phone or Blackberry and he said it's quite likely that someone would be observing [who is] coming in and out of [the ACC's premises] and he's in a position where he will be questioned about the fact that he now no longer has the mobile phones or the Blackberrys and indeed he tells me that he's been regularly asked in the period since the last attendance at the Commission whether they, the Commission, has been back to see him. (Emphasis added) 65 Senior counsel submitted that this submission of the solicitor effectively conceded the Respondent's ownership of the devices. There are a number of difficulties in accepting that submission. 66 First, the "concession" (to the extent to which it can be described as such) is contained in submissions by the Respondent's solicitor, and not in his own evidence. The ACIC was entitled to have the Respondent answer the questions himself and on his affirmation. 67 Secondly, the submissions occurred before the Respondent's contempts. That suggests that it is improbable that the Respondent thought that his solicitor had provided the information sought by the ACIC - otherwise there would have been little point in his refusal to answer the questions. 68 Thirdly, the concession was at best, an acknowledgement that the devices were no longer in the Respondent's possession. However, the questions which the Respondent declined to answer did not enquire about possession, or at least only about possession. 69 In my opinion, it cannot reasonably be concluded that this submission of the Respondent's solicitor addressed the question asked by counsel assisting the Applicant. 70 Next, the Respondent's counsel referred to a submission of the Respondent's solicitor when the examination resumed at 2 pm on 6 June 2018 and after the Respondent had confirmed his refusal to answer the questions: Can I just say Mr Examiner that … I spoke to [the Respondent] during the break, he is of the view that his safety has been so compromised by what occurred at [named suburb] this morning that he's not prepared to answer and can I inform you that during the lunch break I received a phone call from another [motor cycle club member] that I act for and because the Blackberrys and the phones aren't answering, they're already looking for him. 71 Again, I consider that this passage cannot reasonably be understood as providing an answer to the questions of counsel assisting the Applicant. The solicitor was doing no more than informing the Applicant of something he had heard from a source other than the Respondent. That was not an admission or confirmation by the Respondent himself. Further, and in any event, much is left to inference. The ACIC was entitled to the Respondent's own answer on his affirmation. It is also apparent that neither the Respondent nor his solicitor had considered, on 6 June 2018, that the ACIC had been provided with the information sought by the questions from counsel assisting the Applicant.

The Respondent's personal circumstances 72 The Respondent is now 50 years old. He completed year 12 but withdrew from a tertiary course of study after almost one year. He has had a series of employments including in the construction, transport and metal fabricating industries. As I understand it, he is presently unemployed or, if employed, engaged in casual employment only. 73 The Respondent has fathered three children, two of whom are in their 20s, in an earlier relationship and one, aged two and a half, in a second relationship which has since terminated. When the Respondent has had employment, he has provided financial support for his child. The Respondent also provides some support to his mother. 74 The Respondent has prior criminal convictions. In about 1993, he was sentenced to imprisonment for five years with a non-parole period of two years and six months for an offence of trafficking in drugs. In 2004, the Respondent was sentenced to imprisonment for eight years and nine months, with a non-parole period of six years and five months, again for drug trafficking. The Respondent was released on parole for that offence in 2011.

Consideration 75 The Respondent is entitled to some credit for his belated acknowledgement of the contempts but, in the circumstances, that credit can be only slight. 76 As I have already indicated, the Respondent's contempts must be regarded seriously. They undermine the process put in place by the Parliament for obtaining criminal intelligence. The obligations imposed on the Respondent by the ACC Act override any private undertakings or code of conduct adopted by the Respondent in his motor cycle club. As King CJ noted in Von Doussa v Owens, no private undertaking can be regarded as an excuse for failure to comply with the legal obligation imposed by the law of the Parliament. The Respondent has had ample opportunity to reflect on the position since 6 June 2018. Even now he has not chosen to purge his contempt, let alone to make any expression of regret or contrition. 77 The Respondent engaged in the contempts with an awareness of the consequences. 78 Naturally, the Court exercises caution before imposing a sentence of imprisonment, and it is reluctant to impose sentences of imprisonment of indefinite duration. However, the Court should do what it can to induce the Respondent to comply with his lawful obligations. 79 I am satisfied that a sentence of imprisonment until further order is appropriate in the present case and that is the sentence I impose. There is no scope for a form of suspension of that sentence. 80 I will include a liberty to apply in the orders so that, in the event that the Respondent does purge his contempts, there will be the opportunity for the continuation of the Respondent's imprisonment to be reviewed. 81 The Court declares that: (1) The Respondent is guilty of contempt of the Australian Crime Commission in that, being a witness appearing at an examination pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) on 6 June 2018, he refused to answer six questions which the examiner required him to answer. 82 The Court orders that: (1) The Respondent be imprisoned until further order. (2) A warrant for the Respondent's committal to prison be issued. (3) There be liberty to apply. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Australian Crime Commission Act 2002(Cth)ss 7, 7A, 7C, 22, 24A, 28, 30, 34A(a)(ii), 34B

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