NSW Crime Commission v D150

By summons filed in Court on 3 December 2015, the New South Wales Crime Commission (the Commission) seeks an ex parte order pursuant to s 35A(5) of the Crime Commission Act 2012 (NSW) (the Act) for leave to question each of the defendants and have them produce certain documents or things relating to an alleged joint attempt to possess commercial quantities of two types of unlawfully imported border controlled drugs. The possession of such drugs is an offence contrary to s 307.5(1), with s 11.1(1) and s 11.2A(1), of the Criminal Code Act 1995 (Cth), Sch 1 (the Criminal Code).

The allegation that the Commission proposes to investigate is that each of the defendants is part of a syndicate involved in a particular importation of large amounts of two prohibited drugs with a substantial combined street value.

The Commission also seeks ancillary orders, including a non-disclosure and non-publication order pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW).

The application was heard in closed court on 3 December 2015. Ms Drennan appeared for the Commission. I am satisfied that it was appropriate to close the court, having regard to the potential risk to the defendants if their identity becomes known. Each has been selected by the Commission to be examined at a compulsory examination. Although none of the defendants has a choice about the matter, their compliance with any order I might make granting leave to the Commission to examine them might render them subject to reprisals from those associated with the alleged syndicate if their identity becomes known.

Section 3 of the Act identifies as the object of the Act: “to reduce the incidence of organised and other serious crime”. Section 10(1) provides that the principal functions of the Commission include:

Section 35A was inserted into the Act by the Crime Commission Legislation Amendment Act 2014 (NSW), which commenced on the day of Royal assent, 28 November 2014. Section 35A provides:

Sections 39 and 39A of the Act make provision for the (direct) use and derivative use that can be made of answers given or documents or things produced by witnesses as a result of the Commission’s compulsory powers. As s 35A(3) prohibits the use of evidence obtained from persons who have been examined or required to produce documents under s 35A, it is necessary for present purposes to set out only the following extracts of ss 39 and 39A.

Section 45 of the Act provides:

The Management Committee of the Commission is constituted by s 49(1) of the Act. Its members include the Commissioner of Police: s 50(1). Section 51(1) provides that its principal functions include:

Section 54 of the Act relevantly provides:

The Commission relies on an affidavit of Robert Tuckerman sworn 1 December 2015. The deponent is one of the Commission’s officers and is employed as an Assistant Director of Criminal Investigations. He manages the plaintiff’s Organised Crime Directorate and supervises the managers and analysts working on the Commission’s criminal and financial investigations. He is familiar with the relevant joint New South Wales and Commonwealth investigations. The facts set out below derive from Mr Tuckerman’s affidavit.

On 18 February 2014 the Management Committee, pursuant to s 10(1)(g) of the Act gave approval to the Commission to work in co-operation with the Organised Crime Squad (OCS), which forms part of the New South Wales Police Force.

On 21 July 2015 the Management Committee, by notice, referred matters to the Commission for investigation pursuant to s 51(1)(a). The notice set out the nature and purpose of the investigation as follows:

Each of the defendants was charged with two offences of possessing prohibited drugs. The circumstance that two offences were charged arises from the fact that two types of drug were involved, although the Crown case is that the possession was part of the same criminal operation contrary to s 307.5(1) with s 11.1(1) and s 11.2A(1) of the Criminal Code. These charges were laid by the Australian Federal Police (AFP) as a result of its own investigation, in which, according to Mr Tuckerman’s affidavit, the Commission had “no practical involvement”.

These charges are presently listed for mention in the Local Court before the end of court term. Ms Drennan informed me that the Commission planned, if leave was granted under s 35A, to conduct examinations within a fortnight.

In X7 v Australian Crime Commission [2013] HCA 20; 248 CLR 92 (X7), the High Court held that where a person has been charged with an offence, but not yet tried, he or she could not be compulsorily examined about the subject matter of the pending charge. The High Court held that the applicable legislation was not sufficiently clear to authorise such a fundamental departure from the accusatorial nature of the criminal justice system.

In Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196, the High Court, by majority, held that s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) empowered the Court to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person.

In Lee v The Queen [2014] HCA 20; 88 ALJR 656, the High Court considered s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) (the 1985 Act). The 1985 Act has been replaced by the Act. However s 45 of the Act is in similar terms to the relevant provision under the 1985 Act, s 13(9).

Section 35A of the Act, and related amendments, were introduced in 2014 in response to the decisions of the High Court in X7 and Lee v The Queen, which are referred to in the Second Reading Speech (which does not, however, refer to Lee v NSW Crime Commission). The purpose of s 35A was identified in the following terms in the Second Reading Speech (Legislative Assembly, 11 November 2014, page 2426ff):

As at the time these reasons were published, the decision of McCallum J in New South Wales Crime Commission v D109 [2015] NSWSC 1244 was the only published decision, although two other applications had been made by the Commission, which resulted in orders being made by this Court under s 35A. I am indebted to her Honour for her careful analysis of the cases that preceded the insertion of s 35A and associated amendments into the Act.

Section 35A expressly empowers the Court to grant leave to the Commission to summon a person who is the subject of a current charge for an offence and take evidence from that person in relation to the subject matter of the offence. Parliament has thereby expressly evinced its intention to authorise a fundamental departure from the accusatorial nature of the criminal justice system, as it was described in X7.

Section 35A entitles the Commission to apply to this Court, as it has done in the present case, ex parte.

The statutory requirements for the Commission’s application to this Court have been met. Mr Tuckerman is an officer of the Commission: s 35A. His affidavit meets the requirements of s 35A(4)(a) and (b) in that he states that he believes that the questioning of the defendants and the requirements made of them is in the public interest notwithstanding that such questioning or requirements may relate to the subject matter of the offences with which each defendant is charged. He also deposes that the questioning and the requirements are necessary to investigate the matter referred to in the notice fully.

In his affidavit, Mr Tuckerman also:

Mr Tuckerman deposed that although, if leave is granted, the defendants will be questioned about matters which touch and concern their own alleged criminal conduct and the offences with which they have been charged, the defendants’ criminal conduct is “of little interest to the Commission’s investigation, and this information is not the goal of the hearing”.

I am satisfied, on the basis of the material before me, that any prejudicial effect that is likely to arise to the trial of each defendant is outweighed by the public interest in using the Commission’s powers to ensure that the matter referred to in the notice is fully investigated. It is in the public interest that those who bear greater responsibility for the criminal conduct involved in the importation of distribution of prohibited drugs be held to account for their conduct. It is not in the public interest that those who play smaller roles and who are exposed to greater risk, for less reward, are held criminally responsible while the true progenitors and profiteers of the criminal enterprise escape detection with the consequence that they are not brought to trial.

Having regard to the requirements of s 35A(7), (8) and the availability, by reason of s 42(2A), of legal and financial assistance to persons in respect of whom a grant of leave under s 35A has been made, I do not consider it necessary to impose any further conditions on the grant of leave.

For the foregoing reasons, I made orders as follows in respect of each of the six named defendants at the conclusion of the ex parte hearing in closed court on 3 December 2015: