Hannaford (an examiner under the Australian Crime Commission Act 2002) v HH

BACKGROUND 8 The respondent appeared as a witness on [CONFIDENTIAL] at Melbourne at an examination conducted by the applicant. The statement of charges filed on [CONFIDENTIAL] alleges that the respondent contravened sections 34A(a)(ii) and 34A(d) of the Act by refusing to, or failing to, answer the following questions asked by the applicant and which the respondent was required to answer: (a) [CONFIDENTIAL]? (b) [CONFIDENTIAL]? (c) [CONFIDENTIAL]? (d) [CONFIDENTIAL]? (e) [CONFIDENTIAL]? (f) [CONFIDENTIAL]? (g) [CONFIDENTIAL]? (h) [CONFIDENTIAL]? 9 The applicant claimed the following relief: 1. A Declaration that the Respondent is in contempt of the Australian Crime Commission, in that the Respondent: 1.1 Refused or failed to answer questions that the Respondent was required to answer by the Examiner, and 1.2 Obstructed or hindered the Examiner in the performance of his duties as an Examiner. 2. This Honourable Court deals with the Respondent as if the Respondent's acts or omissions constituted a contempt of this Honourable Court. 3. This Honourable Court punish the Respondent for contempt. 4. Pursuant to section 50 of the Act, until further Order, publication of the name and address of the Respondent be prohibited. 5. Pursuant to O 1 r 8 of the Federal Court Rules (the Rules), that personal service of the Application on the Respondent under O 40 r 8 be dispensed with and that service be effected on [CONFIDENTIAL], pursuant to O 7 r 4A of the Rules. 6. Upon the Respondent's legal representatives filing a Notice of Appearance in this proceeding omitting the name and address of the Respondent, the legal representatives also file a sealed enveloped marked 'Not to be opened until further Order of the Court' containing the name and address of the Respondent. 7. The affidavit of [CONFIDENTIAL] of 11 October 2010, and annexures thereto, filed with this application, be placed by the Registry in a sealed envelope marked 'Not to be opened until further Order of the Court.' 8. An Order that the Respondent pays the Applicant's costs. 9. Any other Order this Honourable Court deems appropriate. 10 The application was supported by the affidavits of [CONFIDENTIAL] sworn 11 October 2010, 21 October 2010 and 3 November 2010, and the annexures thereto. At the applicant's request, the affidavits and annexures were initially placed in an envelope marked "Not to be opened until further order of the Court". At the first hearing on 22 October 2010, I ordered the file sealed until further order. 11 The first affidavit of [CONFIDENTIAL] who is employed as a principal lawyer with the ACC discloses that: (a) [CONFIDENTIAL] (b) On [CONFIDENTIAL], the Examiner issued a summons under s 28 of the Act for the purposes of a Special ACC Investigation in accordance with an Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) Amendment No 1 of 2010 [CONFIDENTIAL] ("the determination"), requiring the respondent to attend before the Examiner on [CONFIDENTIAL]. (c) On [CONFIDENTIAL], the summons was served on the respondent. (d) On [CONFIDENTIAL], the respondent appeared before the Examiner pursuant to a permit issued under s 57A(1)(b) of the Corrections Act 1986 (Vic). The respondent was represented by counsel who, having spoken to the respondent, indicated that the respondent did not intend to answer questions. (e) The Examiner granted leave for the respondent's legal representative to be present and to represent him. (f) The respondent swore on oath administered by the Examiner. (g) The Examiner advised the respondent of his obligations and rights under the Act, including the obligation to answer questions and to produce documents or things required of him, and of the availability of legal protection from self incrimination. The respondent stated that he understood the benefits of protection from selfincrimination were available, but did not seek the general benefit of protection from selfincrimination offered to him, as he would not be answering any questions. The respondent was then advised of the opportunity to claim the protection from self-incrimination in relation to particular answers only. The Examiner informed the respondent that he was not entitled to refuse to answer a question and that to do so would constitute an offence entailing penalties, including imprisonment and fines. (h) The Examiner informed the respondent of a number of other matters, including the reasons for questioning him. The respondent reiterated that he did not intend to answer the questions. The Examiner advised that in that case, the respondent would face an application in the Federal Court for contempt of the ACC. The Examiner also informed the respondent that under s 25B of the Act he could be imprisoned indefinitely until he cooperated. (i) Following an adjournment, the examination proceeded. Counsel assisting the Examiner put a number of questions to the respondent. (j) Contrary to his expressed intention to answer no questions, the transcript reveals that the respondent provided his name, date of birth, and place of residence. He also confirmed that the summons was served on him on [CONFIDENTIAL] and that he had read it. [CONFIDENTIAL] 12 The following exchange occurred: [CONFIDENTIAL] 13 Following a luncheon adjournment, the respondent reiterated that it was still his intention not to answer any questions. The Examiner informed the respondent that he believed him to be in contempt of the ACC. He therefore proposed to apply under s 34B(2) of the Act for the respondent to be dealt with for contempt and would sign a certificate as to the grounds and arrange for its service. 14 The Examiner foreshadowed that he would also apply to suppress the respondent's name as, having regard to the available intelligence, it was incumbent on him to keep confidential his wish to speak to the respondent about the relevant activities. 15 The Examiner made directions restricting access to the evidence, including the transcript. The Examiner advised the respondent that he was not at liberty to speak to others (save for his legal representatives or ACC staff) about the fact that he had been summonsed to appear before the ACC or what had occurred there. 16 The examination was then adjourned. 17 [CONFIDENTIAL] first affidavit annexes a Certificate of Contempt of the Australian Crime Commission under s 34B(3) of the Act dated [CONFIDENTIAL], which states, inter alia, the following: [CONFIDENTIAL] The grounds for making the application 9. When appearing as a witness at an examination before me, the witness refused or failed to answer questions that I required him to answer. By operation of s34A(a)(ii) of the ACC Act the witness is in contempt of the ACC. 10. Further or alternatively, by his responses to the questions set out below the witness obstructed or hindered me in the performance of my functions as an examiner, namely, to obtain from the witness meaningful responses to questions relevant to the special investigation and pursuant to s.34A(d) is in contempt of the ACC. … 18 The certificate of contempt then set out evidence of the contempt, including extracts from the transcript noted above. The certificate continued: Opinion 12. I am of the opinion that during the examination before me on [CONFIDENTIAL], [CONFIDENTIAL] was in contempt of the ACC, in that: (i) When appearing as a witness, he refused or failed to answer questions when required to do so by an Examiner under section 30 (2)(b) of the ACC Act; and (ii) Further or alternatively, by his responses to the said questions the witness obstructed or hindered me in the performance of my functions as an, examiner, namely, to obtain from the witness meaningful responses to questions relevant to the special investigation and pursuant to s.34A(d) is in contempt of the ACC. Section 34B(2) information 13. Pursuant to s34B(2) of the ACC Act, on [CONFIDENTIAL], I informed the witness of my intention to make the present application, as detailed in Attachment B at page 22, lines 8-14. 19 By a second affidavit sworn 21 October 2010, [CONFIDENTIAL] deposed to the nature and importance of the special investigation as follows: At Annexure B to my earlier affidavit I deposed to the special investigation being conducted by the ACC. The purpose of the special investigation is to investigate and collect intelligence in relation [CONFIDENTIAL], and associated criminal activities. This investigation is important because[CONFIDENTIAL]. [CONFIDENTIAL] deposed to the respondent's capacity to assist the special investigation by providing relevant information as follows: The ACC considers that the respondent is capable of providing important information that would assist the special investigation. The Respondent is believed to have been involved in [CONFIDENTIAL]. The Respondent can provide information about [CONFIDENTIAL]. 20 [CONFIDENTIAL] 21 [CONFIDENTIAL] 22 [CONFIDENTIAL]

Determination 23 The Determination [CONFIDENTIAL], expressed in an instrument made by the Board of the ACC, defines a number of terms, including [CONFIDENTIAL]. 24 The Determination stated that the Board authorised the ACC to investigate the matter mentioned in schedule 1 relating to federally relevant criminal activity until [CONFIDENTIAL], and to provide a report at or before the first Board meeting after [CONFIDENTIAL]. A schedule lists a wide variety of activities. 25 The Determination was subsequently amended by an instrument made by the Board on [CONFIDENTIAL], extending the date for the investigation and reports to [CONFIDENTIAL]. 26 The Determination stated that the Board had considered whether ordinary police methods of investigation into the matter mentioned in schedule 1 relating to federally relevant criminal activity were likely to be effective and determined that the investigation mentioned in schedule 1 was a special investigation. 27 The purpose of the investigation included to collect and analyse criminal information and intelligence, identify persons involved to facilitate their apprehension, reduce the incidence and effect of the activities and make appropriate recommendations to the Board.

Relevant Legislation 28 Section 34A of the Act 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 (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. 29 Section 34A is a recent provision, which has been in effect since 20 February 2010. It was inserted into the Act by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 ("the Amendment Act"). According to the Explanatory Memorandum for the Amendment Act, amendments were made to the Act to "improve the operation and accountability of the Commission".

Explanatory Memorandum 30 The Explanatory Memorandum referred to the following deficiencies in the existing provisions of the Act for dealing with uncooperative witnesses: There are two issues with the offences as they currently operate. Firstly, there is no immediate threat of detention. At present, if a person is summonsed to appear as a witness and attends the examination but refuses to cooperate, the matter is referred to the CDPP and the prosecution proceeds by way of summons. As a result, there is no immediate detention or threat of immediate detention to the person. Arresting the person is not available as it is not necessary to arrest a witness in order to achieve any of the purposes set out in paragraph 3W(1)(b) of the Crimes Act. Secondly, the effectiveness of these offences is often compromised by the delay in the commencement of court proceedings. It can often take a long time before a matter is brought before a court and even longer before the court is able to deal with the matter. Witnesses have been prepared to not cooperate with examiners, knowing that no penalty will be imposed for at least 12-18 months. Witnesses are aware that they may also be able to avoid criminal conviction (and therefore any penalty) by eventually agreeing to give evidence prior to the completion of the criminal process knowing that the evidence will have lost its value to the investigation by that stage. By delaying when information is provided, a witness is able to effectively delay and frustrate the operation of an ACC investigation. 31 The Explanatory Memorandum stated that an independent review and report on the operation of certain provisions in the Act and the National Crime Authority Act 1984 (Cth), conducted by Mr Mark Trowell QC ("the Trowell Report") and presented in the House of Representatives on 21 February 2008, found: that the lack of a contempt power for dealing with uncooperative witnesses in examinations is a significant impediment to its capacity to combat serious and organised crime. The Trowell Report recommended that the ACC Act be amended to give examiners the capacity to refer an alleged contempt to a superior court to consider and deal with as though it were contempt of that court. The Trowell Report went on to recommend that if, after hearing a contempt application, a court finds the person to be in contempt, the court would have the power to deal with the person as if they were in contempt of court (for instance, the court would have the power to imprison the person). 32 The Explanatory Memorandum set out the objectives of the amendment as follows: Rationale for changes This item will implement the key recommendation of the Trowell Report, and respond to the recommendations of the PJC-ACC, by providing an examiner with the power to refer uncooperative witness to a superior court to be dealt with as if the witness was in contempt of that court. Under the new contempt provisions, the ACC, where appropriate, will be able to deal promptly with an uncooperative witness, while avoiding the delays which are a part of the prosecution process. 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 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. Allowing a person to be dealt with through contempt provisions will maintain the integrity of the examination process as an important investigative and intelligence-gathering tool in combating serious and organised crime. The new contempt procedures will bring the ACC into line with other State and Territory agencies similar to the ACC who have had contempt provisions for some time. The experience of those agencies is that the power to cite an uncooperative witness for contempt is used sparingly, and that the threat of such action will be often sufficient to secure compliance. 33 The Explanatory Memorandum stated: Section 34C Section 34C will provide that contempt proceedings are to be conducted in accordance with the ordinary rules and procedures of the Court to which the examiner applies. This will ensure that the court will retain overall control of the contempt proceedings from the time the person is brought before that court until the application is disposed of. The examiner will simply be a party to the proceeding. Subsection 34C(3) will also provide that the certificate submitted under subsection 34B(3) by the examiner stating the grounds for making the application and evidence in support of that application is prima facie evidence showing contempt of the ACC. This will allow the court to find the facts of the alleged contempt without necessarily having to rely on any oral testimony. This does not prevent the defendant from challenging the evidence. However, if there is no dispute as to the facts, the certificate will expedite the contempt proceedings. 34 Legislation similar to ss 34A-34F of the Act, such as provisions of the Royal Commissions Act 1923 (NSW) ("Royal Commissions Act"), has been considered in a number of authorities. 35 In Royal Commissioner v Staunton [1995] NSWSC 45 (19 September 1995) ("Staunton"), Dunford J referred to s 17 of the Royal Commissions Act and summarised the effect of the legislation (at [3]). 36 As with the legislation at issue in the present matter, a certificate was prima facie evidence of the matters certified. The certificate indicated that the Commissioner had asked the defendant a number of questions, some of which he refused to answer. 37 Dunford J stated (at [10]-[11]): 10. No evidence or defence was adduced on behalf of the defendant to the charge of contempt and his counsel indicated that he did not wish to say anything by way of defence. I therefore accepted the evidence in the certificate, found that the defendant was guilty of contempt of the Commission and adjourned the matter to the following day for evidence and submissions on penalty, and I directed that the defendant be detained in custody in the meantime. 11. On the following day evidence was adduced and submissions made in relation to penalty and I reserved my decision, the defendant again being detained in custody. I now proceed to give my determination on penalty mid the reasons therefor. 38 Dunford J considered an affidavit and crossexamination of the defendant. His Honour found that the defendant's professed reasons for not answering were not genuine. His Honour concluded that his contempt was wilful. 39 In Wood, Honourable Justice v Galea [1995] NSWSC 100 (26 October 1995), a witness was held in contempt under s 18A of the Royal Commissions Act for refusing to answer questions. In considering the penalty, Hunt CJ at CL stated: 21. The substantial issue which was debated before me was the purpose for which, stating it in neutral terms, action can or should be taken against the respondent as a result of his contempt of the Royal Commission. Three possible specific purposes of any such action were identified: (1) as retribution for the contempt which has been committed by the respondent, or by way of expiation on his party; (2) to coerce him into answering the questions; and (3) the deterrence of others. The third of those purposes would clearly overlap with each of the other two. 40 His Honour considered the seriousness of the contempt and noted that the information sought was of very substantial importance to the Commissioner's terms of reference (at [19]). His Honour was satisfied that the court was empowered to commit a person found guilty of contempt of a Royal Commission to prison until further order of the Court (at [29]). 41 Hunt CJ at CL considered whether a determinate sentence should be imposed as a punishment. His Honour observed (at [31]) that: coercion would obviously be inappropriate if the respondent had already purged his contempt, or if it were no longer necessary to obtain the questions to the answers asked, or if the Royal Commission had been terminated, or if for any other reason no good purpose would be served by detaining him any further. 42 His Honour continued (at [32]): I do not belief that the respondent's obduracy is of such a nature that it is unlikely that he will change his mind. …On the contrary, I am satisfied that it is likely that coercive action against the respondent will eventually produce the information sought by the Commissioner…and that these are the only means by which such a result may be obtained. 43 In Staunton, Dunford J found a witness guilty of wilful and contumacious contempt, designed to frustrate the work of the Commission, which was set up in the public interest. His Honour stated: If a number of witnesses before the Commission took the same view the Commission would be reduced to a toothless farce. As Moffitt P said in relation to another Royal Commission in Thelander v Woodward (1981) 1 NSWLR 644 at 646: "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," and in Von Doussa v Owens (No 3) (1982) 31 SASR 116, a case of a witness refusing to answer questions before an Inspector conducting an investigation under the Security Industry (SA) Code, King CJ at pp 117 to 118 said: "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." 44 His Honour further stated: In considering an appropriate penalty the main considerations must be coercion, punishment and the deterrence of others, particularly those who may find themselves in a similar position before the Commission. 45 Dunford J considered a determinate sentence inappropriate. It had been imposed in cases that were distinguishable from that before him because, inter alia, the trial was complete, the witness had an avowed intention to continue to refuse to answer, or had sought to defend a genuinelyheld principle, such as protection of the confidentiality of journalistic sources. 46 In contrast, in Staunton, the defendant's motive for refusing to answer was the protection of wrongdoers, "possibly including himself". His Honour stated "[t]he Court's primary object at this stage is to persuade the defendant to comply with his legal obligation and answer questions" (at [28]). 47 Dunford J also observed that it was "early days yet" and he was not satisfied that the defendant's professed resolve would not weaken, "particularly after some time in prison" (at [27]). 48 In Von Doussa v Owens (No 3) (1982) 31 SASR 116, King CJ (with whom Zelling and Wells JJ concurred) in October 1982 refused to discharge from custody a defendant who maintained his refusal to answer questions put to him by an inspector appointed under the Securities Industry (South Australia) Code. King CJ observed that the answers were sought not in the context of private litigation, but for an investigation in the public interest. His Honour stated that therefore "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" (at 118). 49 In November 1982, however, the respondent was released from custody, as the majority of the Full Court (Mitchell and Wells JJ, Zelling J dissenting) held that he had been sufficiently punished for his contempt. [Von Doussa v Owens (No 3) (1982) 31 SASR 116.]

Liability for contempt 50 In the present case, the applicant relied on the affidavits of [CONFIDENTIAL] sworn on 11 October, 21 October 2010 and 3 November, and the annexures thereto, including a certificate of contempt under s 34B(3) of the Act [CONFIDENTIAL]. 51 At the resumed hearing of the matter on 4 November 2010, the respondent, who was present in court, pleaded guilty through his counsel to the charges of contempt of the Australian Crime Commission under s 34A(a)(ii) of the Act, constituted by his refusal or failure to answer the specified questions when required to do so by the Examiner. 52 As he pleaded guilty to contempt under s 34A(a)(ii) of the Act, it was unnecessary for the respondent to plead to the alternative charge of contempt under s 34A(d) of the Act, constituted by refusal or failure to answer the same specified questions when required to do so by the Examiner. 53 No evidence, defence or submissions were put by or on behalf of the respondent, who did not seek to challenge or otherwise refute the evidence on which the applicant relied. 54 Having considered the plea, the matters specified in the certificate (which is prima facie evidence of the matters therein), having heard and received the further evidence or statements in support of the applicant, and having noted that the respondent did not wish to adduce any evidence or make any submissions, I was satisfied, and found, that the charges of contempt under s 34A(a)(ii) of the Act were made out, as the respondent refused or failed to answer a number of questions which he was required to answer by the examiner pursuant to s 34A(a)(ii), and all other requirements of the legislation were satisfied.

Penalty 55 At the hearing on 5 November 2010, the respondent, although present in person and represented by counsel, declined to instruct counsel and did not adduce any evidence or make submissions on mitigation or penalty. 56 There was no evidence before the Court of the respondent's circumstances, including any relevant medical conditions, or familial or other circumstances. 57 While the respondent pleaded guilty, the contempt was extremely serious. The answers to the specified questions were sought by the ACC in pursuit of its functions in the public interest. As noted in comparable cases, the ACC's examination processes would be hamstrung if all witnesses adopted the respondent's approach. 58 The evidence before the Court established beyond reasonable doubt that the contempt was deliberate. Further, the respondent was clearly informed that his conduct would expose him to serious penalties, including imprisonment. 59 The Explanatory Memorandum makes clear that a primary objective of the amendments was the introduction of a compelling incentive for an uncooperative witness to cooperate in a timely way, by providing the information sought while it remains useful for the ACC's purposes. 60 In the present case, the relevant information is still keenly sought by the ACC. The respondent made no statements to his future intentions and there was no evidence to establish that he would not subsequently be induced to reevaluate his approach and answer the specified questions. 61 The respondent's custody on remand in relation to a number of charges could coincide with any term of imprisonment ordered in relation to the respondent's contempt. An order for imprisonment for the contempt would, however, constitute an independent basis for detention, irrespective of the outcome of the other charges. Further, it would deprive the respondent of the subtraction of presentence detention from any term imposed in relation to the charges he faced, should they be subsequently proved. While the outcome of the respondent's trial on the other charges was as yet unknown, I considered that the potential loss of a reduction of any term of imprisonment ultimately imposed could constitute an incentive for his cooperation. 62 Given the respondent's circumstances, a fixed term of imprisonment was unlikely to influence him to provide timely cooperation, which is the principal aim of the relevant provision. 63 Therefore, I considered it necessary to order that the respondent be imprisoned until further order. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dodds-Streeton.