New South Wales Crime Commission v D116

The New South Wales Crime Commission, by way of a summons filed in Court, has brought an application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) (the CC Act) to take evidence from a person accused of the offences listed in the schedule to the summons about those offences. The summons is supported by a confidential affidavit of an authorised officer of the Commission affirmed on 3 February 2025.

The summons also seeks orders that the Commission have leave to file the summons in court and the proceedings be heard instanter, ex parte and in camera. In addition, an order is sought that the defendant be referred to by the pseudonym D116 and non-disclosure orders are sought under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNPO Act) in respect of

As to the orders concerning the defendant’s name, an order is sought that those orders should be vacated when the defendant is no longer subject to the charges listed in the schedule to the summons. Finally, subject to an appropriate undertaking from the Commission, the Commission seeks an order that the confidential affidavit, being the evidence in support of the motion, be returned to the Commission for safe keeping.

The urgency and requirement for confidentiality or non-disclosure in these proceedings is explained in the confidential affidavit and arises out of the nature and seriousness of the subject matter under investigation and the fact that the notice issued by the Commission envisages a hearing on 6 February 2025. On the basis of the evidence in support of this application, which I accept, disclosure of the name of the defendant, the fact of this application and the investigation and its nature and subject matter have the very serious potential to undermine the effectiveness of the investigation and to put at risk the safety of the defendant. In the circumstances, I was satisfied that it is reasonably necessary and appropriate that the Commission have leave to file the summons in court and the proceedings be heard instanter, ex parte and in camera and I so order.

In addition, and on the same basis, I am satisfied that the orders sought under the CSNPO Act are necessary in order to prevent prejudice to the proper administration of justice, to protect the safety of any person and it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice, as referred to in s 8 (1)(a), (c) and (e) of the CSNPO Act. Given the nature of modern media, it is appropriate that such orders should apply through out the Commonwealth. The shortest time during which such orders should operate is until the completion of the Commission’s investigation, subject to any order of the Court which may be appropriate in light of changed circumstances.

In order to facilitate the conduct and recording of these proceedings, it is also reasonably necessary and appropriate to refer to the defendant by the pseudonym, D116. Similarly, the order that the confidential affidavit, being the evidence relied on in support of the summons be held by the solicitor for the Commission for storage subject to an undertaking to store the evidence safely and comply with any direction of the Court is appropriate in all the circumstances.

I note in this regard that the non-disclosure of the defendant’s name, and the pseudonym order, are only to be operative until the relevant charges are disposed of.

The order sought under s 35A of the CC Act is as follows:

Section 35A of the CC Act provides:

It has been held that s 35A is not invalid as contravening Ch 3 and s 80 of the Constitution of the Commonwealth: D151, D152, D154 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143.

In observations which have been followed in a number of later cases, Hall J said in New South Wales Crime Commission v D181 [2015] NSWSC 1836 that the approach to be taken to an application under s 35A is as follows:

It is not appropriate in this judgment to refer to the detail contained in the affidavit of the Commission's officer as this might tend to undermine the effectiveness of any investigation if it were disclosed. It is sufficient to note that the affidavit deals with the following matters:

The supporting affidavit in the present case provides, in my view, evidence relevant to the grounds relied upon by the authorised officer, and that those grounds provide more than adequate support for the stated belief and suspicion held, as required by s 35A(4)(a)(i) and (ii) of the CC Act.

I am satisfied that any prejudicial effect that is likely to arise at the defendant's trial in relation to the current charges against her from the proposed questioning or requirement is outweighed by the public interest in using the Commission's powers to ensure that the matters referred to in the copy of the notice accompanying the summons issued to the defendant are fully investigated, particularly given the very serious nature of those matters.

The Commission has proposed five conditions on the grant of leave in order to minimise any prejudice to the defendant. These are in substance the same as the conditions which Davies J found to be sufficient and appropriate in New South Wales Crime Commission v D112 [2023] NSWSC 738. I accept that these conditions are sufficient in the present case.

Accordingly, in addition to the orders I have made concerning the leave being granted to file the summons in court and that the matter be heard instanter, ex parte and in camera, I make orders in accordance with pars 1, 2, 3, 4, 5 and 7 of the form of order which has been provided by the Commission, which I shall sign and date with today's date and to which the Court seal will be affixed.

In addition, I grant leave in accordance with par 6 of the form of order (with subpar (v) amended by deleting "court" and replacing it with "count of be") subject to the conditions identified in par 8 of the form of order.

I also note the undertaking given by the Commission in the form of order.

I note that the form of orders proposed by the Commission did not include a reference to "any related bail applications", which was an unintentional oversight. It does appear to me appropriate to include the reference to "any related bail applications" in par 2(c) of the form of orders, and I amend the form of orders I previously announced to include in par 2(c), after "2012", the words "and any related bail applications made on behalf of the defendant”.

I note that the affidavit containing the confidential material is returned to the Commission on the basis of the undertaking provided as to safe storage and compliance with any direction of the Court.