The reason for the contempt
51 CVA22 submitted that the reason for his contempt was twofold: (1) he was concerned about his trial being prejudiced as a result of his questioning; and (2) he fears reprisals if others come to believe that he has provided information to authorities.
52 As to the first matter, as noted earlier, CVA22's then counsel cited concerns of prejudice to the ongoing criminal trial by reference to the principles in X7 during his examination before the ACIC. The written submissions filed for CVA22 in respect of this hearing contended:
The respondent's concerns of prejudice to his trial are based on the highly unusual circumstance where ACIC operatives are witnesses in the proceedings currently pending. The fact that ACIC members were conducting surveillance of the respondent's co-accused would infer the applicant was part of the broader investigation, not limited to surveillance activity but the overall investigation. Including the provision of intelligence. Such a circumstance raises the unfairness concluded in X7 and it is difficult to accept that the legislative imprimatur to question an examinee post charge would have permitted questioning in circumstances when ACIC is part of the prosecuting authority.
53 In his letter of apology, CVA22 referred to concern about the potential access to ACIC evidence by the Crown. This included:
I know that ACIC say that anything that I say will be offered [immunity] but I have heard of cases where the Crown or legal team have [subpoenaed] crime commission statements and they have been granted.
54 CVA22 did not make an affidavit or make himself available for cross-examination. His letter of apology was admitted over objection, but its weight is diminished by the matters just mentioned.
55 The applicant reiterated the comments of the Examiner in the Second Examination, that amendments to the ACC Act following the High Court decision of X7 now expressly authorise the examiner to conduct post charge examinations. The applicant also referred to the fact that CVA22 has the benefits of the strict confidentiality direction made by the examiner to prevent the evidence given at an examination being disclosed to anyone involved or proposed to be involved in the current criminal proceedings against the respondent.
56 On 23 November 2022, the applicant filed a further affidavit of Mr Halls who is employed by the ACIC as the National Manager: Examinations. In response to CVA22's concerns regarding the risk of prejudice to a fair criminal trial, Mr Halls stated at [7] to [11]:
[7] Operation [REDACTED] was an operation run by the Australian Federal Police (AFP) [REDACTED]. It was not an ACIC operation and the ACIC does not have immediate and automatic access to investigation material obtained under Operation [REDACTED]. The ACIC has received Operation [REDACTED] material from the AFP from time to time where the AFP has lawfully disclosed such material to the ACIC, however it is not the case that ACIC is aware of all the investigation material. In addition, the ACIC does not hold a copy of the relevant briefs of evidence in prosecutions arising from Operation [REDACTED].
[8] The ACIC officers whose witness statements and evidence are attached as Annexures AL-11 to AL-14 of the affidavit of Aisha Lopez sworn on 13 November 2022 (Lopez affidavit) assisted in the resolution of Operation [REDACTED], an AFP investigation commenced in [REDACTED] targeting a transnational serious and organised crime syndicate involved in drug importation and drug trafficking. To the extent identified in the statements at Annexure AL-11 those ACIC Officers assisted in providing surveillance between [REDACTED] and [REDACTED]. The ACIC officers whose statements are Annexures AL-13 and AL-14 provided assistance by attending the execution of a search warrant on [REDACTED] at the residence of [REDACTED].
[9] Each of the ACIC officers whose statements are annexed at AL-11 (and whose observations are contained in the surveillance reports at AL-12), AL-13 and AL-14 were acting in their capacity as a Special Member of the AFP in support of the AFP investigation codenamed Operation [REDACTED]. The assistance provided by the ACIC in the resolution phase of AFP [REDACTED] was at the direction of the AFP and those ACIC officers were not independently investigating CVA22 or his co-accused. None of the ACIC officers referenced in the preceding paragraph has had any involvement in the prosecution of CVA22's outstanding charges, apart from the extent (if any) to which the provision of their witness statements to the AFP is regarded as such involvement. As far as I am aware, it is not proposed that any of them will have any involvement in that prosecution in the future, apart from providing evidence about the matters referred to in their witness statements if and when any of them is actually required to so in that prosecution.
[10] None of those ACIC officers were authorised to attend the examination of CVA22 on [REDACTED] and [REDACTED]. I have examined the Authority to Attend (ATA) for each examination and the Examination Viewing Attendance Log and those documents indicate that none of the ACIC officers whose statements are at Annexures AL-11 to AL-14 attended or otherwise participated in those examinations. None of the ACIC officers have accessed or received any evidence provided by CVA22 at those examinations.
[11] The Applicant made an Examiner Confidentiality Direction that, among other things, prohibits disclosure of evidence provided by CVA22 at his examination to any person involved, or proposed to be involved, in the current criminal prosecution against CVA22.
57 I am satisfied that the practices adopted by the ACIC as set out in Mr Hall's affidavit show that the ACIC is aware of the risk of prejudice and has taken steps to seek to eliminate the risk, including by ensuring that any ACIC officers involved, or proposed to be involved, in the criminal prosecution against CVA22 are not authorised to be involved in the ACIC investigation of CVA22.
58 I do not conclude that CVA22 was aware at [REDACTED] about the involvement of ACIC officers in support of the AFP's Operation [REDACTED] investigation in their capacity as a Special Member of the AFP. The evidence did not establish that he was.
59 I am nevertheless satisfied that CVA22 had, and continues to have, a genuine concern that in one way or another, information provided to the ACIC by CVA22 might be obtained by other authorities for use in his criminal prosecution and that this was a part of his concern on [REDACTED] informing his decision not to answer questions.
60 As to the second matter, CVA22's asserted fears for safety and concern of reprisals by co-accused and inmates if they suspected he had divulged information to the ACIC were outlined by CVA22 in his letter of apology and found substantial support in the expert report of Ms Shannon Burgess.
61 CVA22 referred to the decision by Bromwich J in CFS22 in which his Honour imposed a fixed sentence in relation to a respondent who had expressed fears which, "while not specific in referring to any direct threat having been made, were not generalised either". His Honour concluded that the "fears were genuine and rational" and thereby acted to mitigate the seriousness of the non-compliance: at [4] and [45]. His Honour has earlier referred to DTO21 at [62], where I made the following observation:
The respondent's fear was expressed in general terms. There is no evidence of any specific threat and the evidence does not enable any reliable assessment of whether the fear is well founded. The examination was held in private and only ACIC staff were present. There are, of course, risks which are inherent in being involved in criminal activity of the type being investigated: CRA20 at [46]; BYF19 at [63]. This factor is not ordinarily given significant weight where the fear is disputed and the evidence does not enable a reliable assessment of whether the fear is well founded: R v Drever [2010] SASCFC 27 at [24]; Corruption and Crime Commission v Allbeury(No 2) [2011] WASC 26; (2011) 205 A Crim R 386 at [42] -[43]; Hannaford v HH (No 2) [2012] FCA 560; (2012) 203 FCR 501 at [33]; BYF19 at [58]-[61]; GPY18 at [31]; CRA20 at [45]. Notwithstanding, I accept that the reason for refusing to answer was that the respondent was afraid of possible repercussions to him and his family. This necessarily has a bearing on moral culpability. He did not, for example, obdurately refuse to answer without any reason or for the sole purpose of flouting authority.
62 A difficulty for CVA22 is that he did not give evidence and was not cross-examined. A further difficulty, as the applicant submitted, is that, at the time of the examinations, CVA22 did not refer to fear as a reason for not answering questions. Rather, his reliance was on the prejudice to his criminal proceedings. CVA22 was asked by the applicant on [REDACTED], in relation to each of the questions the subject of the charge, if there was any other reason why he refused to answer and CVA22 said there was not. CVA22 did not otherwise give fear of reprisals as a reason for refusing to answer questions at either the First or Second Examinations.
63 In R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], Smart AJ said:
[58] There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
[59] There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
64 In R v Sara [2020] NSWCCA 119 at [109], Harrison J (with whom Bathurst CJ and Hoeben CJ at CL agreed) characterised Qutami as being "concerned with subverting the fact-finding process by attempting to rely for their truth upon unsworn statements given to experts" and noted that, in the case before the Court there was no real dispute about the relevant underlying facts, in that case, that "Mr Sara served his remand in maximum security conditions, that his marriage broke down and that his mother had mental difficulties during his time on remand".
65 Ms Burgess gave the following evidence in her report:
[REDACTED] identified his next experience of anxiety came after being summoned to provide information to ACIC. Namely, [REDACTED] described having an intense fear for his safety and identified experiencing hypervigilance, a racing heart, sweating, and fears regarding his safety. These symptoms were reportedly triggered by inmates questioning his whereabouts after he had been taken to the ACIC building and following his return to [REDACTED]. [REDACTED] denied any other episodes of anxiety or depression.
…
[REDACTED] noted further concerns in regards to confidentiality, after his first examination on [REDACTED] (confirmed in the originating documents). [REDACTED] described being taken from [REDACTED] and being gone for a number of hours. He stated that a number of other inmates witnessed his leaving [REDACTED] and returning hours later. [REDACTED] identified that his leaving the facility drew a significant level of attention from other inmates, due to the COVID-19 restrictions that were in place at the time. He stated that it was rare for individuals to enter or leave the facility, and as such, inmates were acutely aware of the "comings and goings" taking place at the time. [REDACTED] stated that the inmates were suspicious as to why he was granted permission to leave [REDACTED], given the restrictions, and subsequently [REDACTED] described being threatened and called "a dog" by various inmates. This created a significant level of anxiety and concern to [REDACTED] as he believed his life could be in jeopardy if other inmates believed he was acting as an informant to the police.
[REDACTED] stated that the examiner had communicated assurances regarding confidentiality, safeguards, and protections, however, he identified being alone in [REDACTED], housed with three (3) other men, and in an environment where "people don't take too kindly to informants".
[REDACTED] reported that it took some time for the rumours and suspicions regarding him to "settle down", and that during the time between the first and second examination, he had been extremely fearful for his safety. He stated that "everyone knows everyone" at [REDACTED], and while he was promised confidentiality, he was concerned that other inmates would put the information together regarding his excursions away from [REDACTED], and realise that he had provided information to ACIC. [REDACTED] also stated that he was aware of information contained in briefs whereby individuals had provided evidence confidentially and while their name had been withheld, the information they provided enabled identification. Subsequently, he became concerned with the possibility that he would be identified as having provided evidence against someone, and that his life would be in jeopardy.
[REDACTED] further stated that in his brief, there was mention of individuals plotting to kidnap and kill his co-accused as well as the mention of a "hit team being on standby". He noted that he is "not a hardened criminal" and that he is not physically (or in any other capacity) equipped to deal with individuals of this nature. Subsequently, [REDACTED] stated that he considered his options and ultimately determined that providing information to ACIC "is not worth my life". He believed that he would have been killed for giving information, if the individuals he provided evidence against (or his fellow inmates at [REDACTED]) came to know that it was him. Subsequently, he had made a decision to refrain from giving further information to ACIC during the second examination on [REDACTED], which pertained to specific information against individuals. [REDACTED] described it as a "lose-lose" situation, and reported making the choice to preserve his life, and accept the possibility of receiving more jail time.
66 In cross-examination, Ms Burgess explained that CVA22's fears grew over time such that, at some time between the First and Second Examinations, he developed an Acute Stress Disorder. Her opinion was that there was a direct nexus between the offences and the Acute Stress Disorder in that CVA22 "was motivated to minimise the acute stress response through self-preservation".
67 CVA22 also pointed to the content of certain text messages, to which reference was made during the hearing, which were contained in material provided to CVA22 by the prosecution in relation to CVA22's criminal matter. Whilst this proposition was disputed by the applicant, I accept that the text messages were capable of being reasonably understood as indicating that the authors of some of them were prepared to deprive people of their liberty and cause serious harm. The applicant stated that there was no evidence that CVA22 was aware of this material at the time he refused to answer questions on [REDACTED].
68 The material was referred to by CVA22 to Ms Burgess as she reported in the last paragraph extracted from her report above. Ms Burgess appears to have understood that the material had been read by CVA22 before a decision was made by CVA22 to refuse to answer the questions on [REDACTED]. Evidence could have been adduced by the respondent as to when the prosecution material was obtained, but no such evidence was adduced.
69 I approach this aspect of the case with caution given the lack of direct sworn evidence by CVA22 and the fact that CVA22 did not state that his refusal to answer questions was motivated in part by fear when answering questions at the Second Examination.
70 Nevertheless, having had the benefit of hearing her answers in cross-examination, I accept the evidence of Ms Burgess that CVA22 developed an Acute Stress Disorder and that his offences on [REDACTED] were linked to that disorder in the way she described.
71 I am satisfied that, at the time of the offences (namely the Second Examination), CVA22 was genuinely afraid of reprisals and that, whether or not reprisals were or are likely, his fear was real and based on his experiences, knowledge and thought processes. There was no evidence of a specific threat to him, but there was evidence from which it is reasonable to conclude that, if persons did come to know (or believe) that CVA22 had assisted the authorities, reprisals would be a real possibility. I refer in this regard in particular to CVA22's experiences in jail as reported by Ms Burgess.
72 It is also beyond doubt that CVA22 is now aware of the material contained in the prosecution brief, to which reference has been made, and I accept that this informs his stated position that he will not purge his contempt.
73 In summary, I accept that CVA22 had genuine and rational fears. I accept that this was a reason why he refused to answer questions and was prepared to commit the contempt notwithstanding that he knew his contempt would likely result in detention, possibly including indefinite detention. I also accept that his fears are ongoing. I take this into account in considering his culpability, the likelihood of CVA22 deciding to purge his contempt and an appropriate sentence.