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[2023] NSWSC 738

New South Wales Crime Commission v D112

THE COURT ORDERS THAT 1. Until further order of this Court, pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) (the “CSNPA”) and upon the grounds set out in sections 8(1)(a), (c) and (e) of the CSNPA, there is to be no disclosure or publication of: 1.1. the summons; 1.2. the name of the defendant (subject to further orders); 1.3. the evidence filed in support of the summons; and 1.4. any transcript of the hearing of this matter, subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) (the “Act”) and except for: 1.5. the proper execution of the orders of the Court; and 1.6. the proper processes of the New South Wales Crime Commission (‘the Commission’) in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons. 1.7. disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D112 for any offences the defendant may be charged with under the Act. 2. Order 1 is to have effect throughout the Commonwealth. 3. The defendant be referred to by the pseudonym D112. 4. Leave is granted pursuant to section 35A of the Act to the Plaintiff, its officers and legal practitioners engaged or employed by it, to: 4.1. question D112 at a hearing under section 24 of the Act; and 4.2. require D112 to produce a document or thing pursuant to section 24 or section 29 of the Act; in relation to the subject matter of the offences D112 is currently charged with, namely: 4.3. 3 counts of procure sexual act by false pretence, pursuant to 218(1)(b) of the Criminal Code Act 1899 (Qld) (the Qld Code); 4.4. rape pursuant to section 349 of the Qld Code; and 4.5. procure sexual act by false pretence, pursuant to 218(1)(b) of the Qld Code. 5. An order that, upon the defendant no longer being the subject of the charge identified in paragraph 4, orders 1.2 and 3 be vacated. 6. This leave is granted subject to the following conditions: 6.1. D112 is informed, before they give evidence in the proposed hearing, of section 45A of the Act and its effect, and be afforded an opportunity to obtain legal advice in respect of that section; in particular, D112’s right to object to providing evidence. 6.2. The Commission maintains a record of all persons to whom the evidence of or a record of any of the evidence D112 has been disclosed. 6.3. The Commission takes steps to ensure that the investigators involved in D112’s arrest and who are still involved in ongoing inquiries relevant to the prosecution of D112 for the offences set out in paragraph 4 do not have access to the evidence obtained at the proposed hearing. 6.4. Upon request by D112 or by any legal representative instructed by D112, the Commission will provide written certification that conditions 6.2 and 6.3 have been complied with. 6.5. The electronic document library relevant to the hearing process concerning D112 has been and will remain quarantined from the police officers investigating or involved in the prosecution of D112 for the offences set out in paragraph 4 and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to those officers. THE COURT NOTES THAT Upon the giving of an undertaking by the Commission that it will safely store the evidence filed in support of this summons and shall deal with that evidence in accordance with any future direction of the Court (the giving of which undertaking by the Commission's solicitor being noted), the evidence filed in support of this summons be returned to the Commission for storage.

Catchwords

CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offences – where charged offences in a state outside New South Wales – whether s 35A applicable - public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion –conditions to minimise prejudice to accused person

Cases cited

  • D151, D152, D154 v New South Wales Crime Commission[2017] NSWCA 143
  • New South Wales Crime Commission v D181[2015] NSWSC 1836

Legislation cited

  • Court Suppression and Non−Publication Act 2010 (NSW)
  • Crime Commission Act 2012 (NSW)
  • Queensland Criminal Code Act 1899 (Qld)

Judgment

  1. [1]

    The New South Wales Crime Commission, by way of a summons, has brought an ex parte application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) to take evidence from a person accused of offences about those offences.

  2. [2]

    The summons is supported by an affidavit of an officer of the Commission sworn on 28 June 2023. The summons seeks an order that the proceedings be heard instanter, together with an order that the proceedings be heard in camera.

  3. [3]

    In addition, the summons seeks non-disclosure and non-publication orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of:

  4. [4]

    Section 35A of the Crime Commission Act provides:

  5. [5]

    Applications under s 35A have been the subject of a number of judgments of single judges of the Court, as well as the judgment of the Court of Appeal in D151, D152, D154 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143.

  6. [6]

    The Court of Appeal's judgment determined inter alia that s 35A was not invalid as contravening ch 3 and s 80 of the Constitution of the Commonwealth. It is also otherwise relevant in the circumstances of the present application to which I will return.

  7. [7]

    In New South Wales Crime Commission v D181 [2015] NSWSC 1836, Hall J said this concerning the approach to be taken to an application under s 35A:

  8. [8]

    It is not appropriate in this judgment to refer to the detail contained in the affidavit of the Commission's officer. It is sufficient to note that the affidavit deals with the following matters:

    1. (1)

      The Commission's investigation and what it concerns.

  9. [9]

    The offences with which the defendant is charged are Queensland offences. The issue arises, therefore, whether “offence” is s 35A relates only to an offence against the laws of New South Wales, or includes offences against other state laws.

  10. [10]

    An issue in D151 was whether s 35A applied to federal offences. That was particularly because s 12 of the Interpretation Act relevantly provided:

  11. [11]

    Justice Basten (with whom Beazley ACJ agreed), having held at [25] that there is no reason in principle why the State legislature cannot provide protection from questioning in the exercise of executive power of persons charged with offences of any kind, whether involving contraventions of State or Federal law, went on to say:

  12. [12]

    In similar vein, in D151 Simpson J effectively held, at [96], that the word "offence" appearing in s 35A should not bear the meaning that it bears in other parts of the Act, with the result that the use of the word "offence" in s 35A can mean an offence that is other than an offence committed in New South Wales.

  13. [13]

    I am satisfied that the supporting affidavit in the present case provides evidence relevant to the grounds relied upon by the authorised officer, and that those grounds well support the stated belief and suspicion held in terms of s 35A(4)(a)(i) and (ii) of the Act.

  14. [14]

    I am satisfied that any prejudicial effect that is likely to arise at the defendant's trial in Queensland in relation to the current charges against him 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.

  15. [15]

    I consider that five conditions proffered by the Commission should be imposed upon the grant of leave to minimise any prejudice to the defendant. Accordingly, I make the orders contained in paras 1, 2, 3 and 5 of the draft order which I will sign and date today. I grant leave in accordance with para 4 subject to the conditions identified in para 6 of the draft order. I note that undertaking contained in the draft order.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.