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[2016] NSWSC 548

New South Wales Crime Commission v D101

1. Until further order of this court, pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 and upon the grounds set out in s. 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of: a. the summons; b. the name of the Defendant; c. the evidence filed in support of the summons; and d. any transcript of the hearing of this matter, subject to the requirements of subsection 35A (8) of the Crime Commission Act 2012 and except for: e. the proper execution of the orders of the Court; and f. the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence filed in support of the summons. 2. Order 1 is to have effect throughout the Commonwealth. 3. Leave is granted pursuant to section 35A of the Crime Commission Act 2012 to the Plaintiff, its officers and legal practitioners engaged or employed by it, to question and make full requirements of D101 during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with, namely offences contrary to Section 307.5(1) with section 11.1(1) and 11.2(1) of the Criminal Code 1995 (Cth). 4. Order that the Defendant be referred to by the pseudonym D101. Leave granted under s 35A with the following conditions: (1) The defendant is to be informed, before he gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Act and afforded the opportunity to obtain legal advice in respect of those provisions, in particular, his right to object to providing evidence. (2) The Commission is to maintain a record of all persons to whom the evidence of D101 or a record of any of his evidence has been disclosed, such record to be made available for inspection by D101 upon request by him or by any legal representative instructed by him. (3) The Commission is to take steps to ensure that the investigators involved in D101's arrest and who are still involved in ongoing inquiries relevant to his prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission. (4) The electronic document library relevant to the hearing process concerning D101 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning his prosecution and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to such investigating police officers.

Catchwords

CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offence – public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion – conditions to minimise prejudice to accused person

Cases cited

  • New South Wales Crime Commission v D109[2015] NSWSC 1244
  • New South Wales Crime Commission v D181[2015] NSWSC 1836
  • NSW Crime Commission v D150[2015] NSWSC 1842

Legislation cited

  • Court Suppression and Non-publication Orders Act 2010 (NSW)
  • Crime Commission Act 2012 (NSW)
  • Criminal Code 1995 (Cth)

Judgment

  1. [1]

    The New South Wales Crime Commission by way of Summons 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 an offence about that offence. The matter came before me as duty judge on an urgent basis in circumstances where the examination of the person concerned had already been fixed for 12 May 2016.

  2. [2]

    The Summons is supported by an affidavit affirmed by an officer of the Commission on 26 April 2016.

  3. [3]

    The Summons sought an order that the proceedings be heard instanter together with an order that the proceedings be heard in camera.

  4. [4]

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

  5. [5]

    On 28 April 2016 I made a non-disclosure and non-publication order in accordance with s 7 of the Court Suppression and Non-publication Orders Act and proceeded to hear the application under s 35A(4) in a closed court on an ex parte basis.

  6. [6]

    At the hearing I accepted as Ms Heard for the Commission proposed, that it was appropriate that the Defendant be identified by a pseudonym. I ordered that the Defendant be referred to as D101.

  7. [7]

    Section 35A of the Crime Commission Act 2012 provides:

  8. [8]

    Applications under s 35A have been the subject of three recent judgments being New South Wales Crime Commission v D109 [2015] NSWSC 1244 (McCallum J), New South Wales Crime Commission v D181 [2015] NSWSC 1836 (Hall J) and NSW Crime Commission v D150 [2015] NSWSC 1842 (Adamson J). Those judgments have set out and discussed the background to the enactment of s 35A. I have read those judgments and it is not necessary to repeat the analyses contained in them. However, I gratefully set out and adopt what Hall J said in New South Wales Crime Commission v D181 at [20] as follows:

  9. [9]

    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:

  10. [10]

    I am satisfied that the supporting affidavit 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.

  11. [11]

    I am satisfied that any prejudicial effect that is likely to arise at the Defendant’s trial 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 matter referred to in the copy of the notice accompanying the Summons issued to the Defendant is fully investigated.

  12. [12]

    I consider, however, that four conditions should be imposed upon the grant of leave to minimise any prejudice to the Defendant.

  13. [13]

    One further matter should be stated. It is not appropriate in the ordinary course, although there may be exceptional cases, for the Commission to appoint a time for the hearing of an examination and then approach the Duty Judge as a matter of urgency to have orders made and reasons provided. Duty judges act under considerable restraints of time because of the amount of both in-court and out-of-court applications. Further, the appointment of an examination prior to leave being granted contains at least a prima facie assumption that leave will be given. Reference was made to this matter by McCallum J in D109 at [1] to [4].

  14. [14]

    Accordingly, I make the following orders:

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