The Key To Freedom May Not Be Silence

The Federal Court of Australia has once again reminded witnesses and respondents to summonses of the importance of complying with a summons to attend and participate in an examination pursuant to the Australian Crime Commission Act 2002 (Cth). Non-compliance will attract severe penalties, as the respondent in Australian Crime Commission v DT021 (DT021) found.[1]

Background

In DT021, Thawley J sentenced the respondent (whose name was suppressed) to an indefinite imprisonment term for failing or refusing to answer questions asked of him by an examiner of the Australian Crime Intelligence Commission (ACIC).

The purpose of ACIC includes to investigate serious and organised crime, by which they are able to summon individuals to provide evidence and produce documents or other things to an ACIC examiner.[2]  The respondent was summoned to answer questions in relation to his collaboration with, and knowledge of, drug trafficking organisations. The examination formed part of the ‘High Risk and Emerging Drugs 2020 Special ACIC Operation’, which involved the use of information gained by the monitoring of the ANOM messaging service by the Australian Federal Police, the Federal Bureau of Investigation, and Europol.  ACIC was permitted, in the course of the investigation, to utilise “coercive powers to facilitate the collection of information and intelligence not available through other information collection methods”.[3]

The respondent was asked a series of questions relating to a mobile phone in his possession, specifically: who gave him the phone and for what purpose, if it was related to drug activity and whether he had used a suppressed ANOM handle.  The respondent, having answered earlier, more preliminary questions, refused to answer these questions (or was not forthcoming in doing so), other than to explain that he was afraid for his and his family’s safety because of a person associated with the phone (which he had described to be a ‘burner’).

Compliance under the ACC

It is well understood that compliance is essential to the effective administration of justice; witnesses are subject to a legal obligation to answer questions in proceedings accordingly.[4]  As such, it is an offence to refuse or fail to answer a question where an examiner requires an answer,[5] resulting in an individual to be held in contempt of the ACC.[6]

A person held to be in contempt is brought before the relevant State or Territory Supreme Court or the Federal Court of Australia, which provides the ACIC with a mechanism to deal with uncooperative witnesses in a way that coerces them to comply, and deters from non-compliance, under the threat of a potentially long-term detention.  This was the intention of the Act, as outlined by the then Minister in the explanatory memorandum of the Bill:

… the new contempt provisions will motivate an uncooperative witness to reconsider [their] position and comply with the requirements of an examination, and avoid the immediate threat of detention.[7]

Implications of Contempt of the ACC

Contempt of the ACC is an indictable offence and carries a possible penalty of a fine of up to $44,400 or imprisonment not exceeding 5 years.[8]  A prison term may be fixed (e.g. for 10 months) or indefinite.  An indefinite, or indeterminate, sentence is still subject to the totality principle and so must be fair and not excessive.  As such, imprisonment remains subject to a maximum of 5 years under section 30(6) of the ACC Act (despite the ‘indefinite’ language).  Courts are generally reluctant to impose an indefinite duration, however are capable of doing what they consider to be appropriate in order to “induce [an individual in contempt] to comply with [their] lawful obligations”.[9]

When assessing a sentence, the court considers the likelihood of an individual to purge their contempt.  Purging one’s contempt requires an individual to fully, frankly and truthfully answer the questions that an individual refused to answer under examination.  Where the purpose of punishment is to ensure compliance, it is often considered appropriate to impose imprisonment until such time as the contempt is purged,[10] or where there is no longer a need for that information to be provided.  If an individual agrees to purge their contempt, the adjourned examination is recommenced and any additional questions may then be asked of the individual. Once the individual answers those questions, their contempt will have been ‘purged’.

Lavan Comment

DT021 serves as a reminder of the importance of complying with summonses to provide evidence under examination. 

Obtaining legal advice is strongly recommended if you are subject to summons.  For further information or assistance with such matters, contact Cinzia Donald, Partner in Lavan’s White Collar Crime team.

 

[1] [2022] FCA 288.

[2] Australian Crime Commission Act 2002 (Cth) (ACC Act) s 28.

[3] See Australian Crime Commission v DT021 [2022] FCA 288 [13].

[4] See Von Doussa v Owens (No 3) (1982) 31 SASR 116 [117] – [118] (King CJ, Zelling and Wells JJ agreeing), referred to in present context in Anderson v DKH18 [2018] FCA 1571 [24] (White J).

[5] ACC Act s 30(2)(b).

[6] ACC Act s 34A(a)(ii).

[7] Explanatory Memorandum, Crimes Legislation amendment (Serious and Organised Crime) Bill (No. 2) 2009, 176.

[8] ACC Act s 30(6).

[9] Anderson v DKH18 [2018] FCA 1571 [78].

[10] Wood v Galea (1995) 79 A Crim R 567 [573]; Von Doussa v Owens (No 3); Hannaford v HH [60] – [63]; Royal Commissioner v Staunton (unreported, Supreme Court of New South Wales, Dunford J, 8 June 1995) [26] – [27]; XLVII [49(4)]; CRA20 [34].