New South Wales Crime Commission v D108

On 9 August the New South Wales Crime Commission applied to the Court pursuant to s 35A(2) and (4) of the Crime Commission Act 2012 (NSW) for leave to question D108 in relation to the subject matter of a current criminal charge against him. The application was heard ex parte in chambers. On 9 August 2018 orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress and prohibit publication of the name of the defendant and to require that he be referred to in connection with the proceedings, including on all court process, as D108.

Section 24 of the Crime Commission Act empowers the Commission to summon a person to appear before it at a hearing to give evidence and produce documents or other things. Pursuant to s 29 a person may be issued a summons requiring only the production of specified documents or things. Section 35A came into force on 28 November 2014. It is as follows:

On 17 April 2019 D108 was charged by New South Wales police with possession of an unregistered pistol contrary to s 36(1) of the Firearms Act 1996 (NSW). The offence is alleged to have been committed on about 21 August 2017. On that date police executed a search warrant at a small industrial unit in the Sydney metropolitan area, wherein they located a motor vehicle containing five firearms and a quantity of ammunition. The vehicle was impounded. Pursuant to a further warrant issued on 22 September 2017 it was examined more closely and more weapons were found secreted within it. One of these was a Glock self-loading pistol. From the trigger guard of this weapon there was recovered a DNA sample that has been matched to D108. This is the weapon with respect to which he has been charged.

D108 is contesting the charge concerning the Glock pistol. He was granted bail approximately two months after his arrest, on 25 July 2019. He is to appear again at Campbelltown Local Court in relation to the charge on 13 August 2019.

The Commission has issued a summons under s 24 requiring D108 to attend before it on 26 August 2019 at a hearing to give evidence and to produce any document or other thing as required by the executive officer presiding. Some of the weapons found secreted within the motor vehicle have been linked to another serious offence that is under investigation. D108 has not been charged with that other serious offence and it is not envisaged that he will be. However the Commission wishes to question him about the other offence. It is considered that evidence from D108 concerning the circumstances surrounding his contact with the Glock pistol are likely to assist in the investigation of the other matter.

Section 39(1) of the Crime Commission Act provides that a witness who is questioned under s 24 is not excused from answering any question or producing any document or thing on the ground of privilege against self-incrimination. The Act contains a number of provisions intended to prevent prejudice being occasioned to a witness such as D108 in a subsequent trial, as a result of answers being given under compulsion. Those provisions may be summarised as follows:

The test that this Court is required to apply under s 35A(5) requires, first, that an evaluation be made of “any prejudicial effect that is likely to arise to the person’s trial from the proposed questioning or requirement [to produce documents or things]”. On the assumption that the statutory protections listed above are implemented there will be no prejudicial effect at all. Whether the statutory protections will be departed from, so that prejudice might arise, is a question of hypothetical future facts that cannot be foreseen. The Court cannot sensibly predict that the protections will be infringed and therefore cannot identify any likelihood at all of prejudice to the accused’s trial. This will be the same on every application to the Court under this section. Having no basis upon which to predict future breach of the sections or other circumstances that might give rise to prejudice, the question whether a prejudicial effect is likely to result from compulsory examination of a person who faces a charge will always have to be answered by reference to the Act. Its provisions are static and the answer will always be the same.

The above observations draw upon and take into account the judgment of McCallum J in New South Wales Crime Commission v D109 [2015] NSWSC 1244.

There is a clear public interest in the Commission’s powers of compulsory examination being used in this case, as there probably is in all cases where the Commission intends to examine a person with a view to furthering its investigation of another serious crime. Given that the Court is unable to see into the future to identify a likelihood that the protective provisions of the Act will be breached, the balance under s 35A(5) is in favour of a grant of leave. So far as I can see this will be the case, a priori, on every such application. Hence, the test prescribed in s 35A(5) seems to be for all practical purposes illusory. The process of leave being sought from this Court could be dispensed with, without loss to the statutory scheme.

There is a further consideration of law tending to confirm that the test in s 35A(5) is satisfied in this case and will always be satisfied. I interpret the section as requiring that the Court take into account the power of the trial judge, before whom the witness will ultimately be tried on the charge he faces at the time of the examination, to stay proceedings on the indictment or to grant other relief as necessary to avert prejudice. A permanent stay would only be ordered in an extreme case, where potential prejudice could not otherwise be addressed. More commonly, if knowledge of the evidence given under compulsion should come into the hands of a witness, investigator or prosecutor in circumstances that the trial judge should consider prejudicial to a fair trial, the evidence of the witness might be excluded or a stay might be ordered pending removal from the case of the tainted investigator and/or prosecutor and replacement of them with others who are not tainted with such knowledge. These ultimate protections make it still more clear that no tangible likelihood of prejudice can be foreseen from the present standpoint and there is therefore nothing to weigh in the scales of s 35A(5) against a grant of leave.

For these reasons I gave leave under the section on 12 August 2019 and made ancillary orders.