[2015] NSWSC 73

R v Simmons; R v Moore

See orders

Catchwords

CRIMMINAL LAW – assumed identities – undercover police officers – application for suppression orders under assumed identities legislation – orders to be made unless “interests of justice otherwise require” – suppression orders made – ancillary orders made CRIMINAL LAW - non-publication orders – integrity of administration of justice – order necessary to protect trial process – order will protect Commissioner’s position regarding police operation – no need to consider other bases for orders

Legislation cited

Court Suppression and Non-publication Orders Act 2010 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)

Judgment

[1]
By notice of motion filed in court this morning, the New South Wales Commissioner of Police seeks a number of orders which fall into two categories. First, orders are sought to protect the identity of some 11 witnesses who might generally be described as undercover operatives. Those orders are sought under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and include orders that the witnesses be permitted to appear in court under their assumed names, various non-publication orders and closure of the Court during the course of their giving evidence. The second series of orders seeks non-publication with respect to details of various aspects of the police operation and the submissions relating to both applications. That application is made under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Court Suppression Act”).
[2]
In support of the affidavit, Mr Bhalla (who represents the Commissioner) reads an open affidavit of Malcolm Arthur Lanyon and a confidential affidavit by the same deponent, along with a number of confidential exhibits. None of the parties who appear in the trial proper makes submissions against the making of the orders or take any particular position on the Commissioner’s application.
[3]
I have read and considered the affidavit material. I note the content of s 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW):
[4]
It will be seen that the Court must make relevant orders unless it is in the interests of justice to do otherwise. I am not satisfied that it is in the interests of justice to do anything other than that which is necessary to protect the identity of the various witnesses. Accordingly, I propose to make orders in accordance with orders 14 through to 21 in the notice of motion, although they will be renumbered when I make the final orders.
[5]
As to the second aspect of the Commissioner's application, the three very experienced counsel who appear for the parties in the trial proper all agree that it is necessary to make a non-publication order over all of the evidence and submissions which are to be heard on the voir dire. That is to protect the integrity of the process and the ultimate trial, which may (or, as I found out this morning, may not) be by jury. I am satisfied pursuant to s 8(1)(a) of the Court Suppression Act that such an order is necessary to prevent prejudice to the proper administration of justice. Accordingly, it is not necessary at this stage to resolve whether subs-s (a), (c) or (e) of s 8(1) are engaged by virtue of the matters raised on behalf of the Commissioner. That question may need to be revisited at the conclusion of the voir dire, but at this stage the Commissioner's position will be protected by the orders that I propose to make.
[6]
Accordingly, I make the following orders:
1. (1)
  The 11 witnesses referred to in orders 3 to 13 of the notice of motion be allowed to appear before the Court at the hearing of these proceedings under their respective assumed names. For clarity, those witnesses are referred to in their statements as UCO 1, UCO 2, UCO 3, UCO 4, UCO 5, UCO 6, UCO 7, UCO 8, UCO 9, UCO 10 and UCO 11.
2. (2)
  The witnesses be otherwise referred to by their assumed names during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings and for all purposes in these proceedings.
3. (3)
  There is to be no publication or other disclosure of the real identity of the witnesses or of any document, evidence or other disclosure that identifies or might facilitate the identification of the real identities of the witnesses except as is necessary for the proper conduct of the proceedings.
4. (4)
  There is to be no publication or other disclosure of the assumed identities or assumed names of the witnesses or of any document or evidence that identifies or might facilitate the identification of the assumed names of the witnesses except as is necessary for the proper conduct of the proceedings.
5. (5)
  Without limiting the generality of orders (3) and (4), there is to be no publication or other disclosure of any visual or other description or depiction of the physical appearances or any other identifying features of the witnesses except as is necessary for the proper conduct of the proceedings.
6. (6)
  The Court is to be closed for the duration of the evidence given by the witnesses, subject to the following being permitted to be present in court while they give their evidence:
7. (7)
  Pursuant to s 11 of the Court Suppression and Non-publication Orders Act, orders (3) through to (5) are to apply throughout the Commonwealth of Australia.
8. (8)
  Pursuant to s 12 of the Court Suppression and Non-publication Orders Act, the orders will apply until any further order of the Court.
9. (9)
  There is to be no publication of any evidence or submissions given or made in the course of the pre-trial voir dire, such order to remain in effect until any further order of the Court and to apply throughout the Commonwealth.
10. (10)
  There is to be no publication in relation to submissions heard this morning.
[7]
The confidential affidavit and the written submissions in support will be placed in a sealed envelope, not to be opened except by order of a judge of this Court or a judge of a higher court.