D151 v New South Wales Crime Commission

In D151 v New South Wales Crime Commission, the New South Wales Court of Appeal considered whether section 35A of the *Crime Commission Act 2012* (NSW) conferred power on the Supreme Court to grant leave to the New South Wales Crime Commission to examine a person facing pending federal criminal charges. The applicants, who were charged with federal offences, sought to challenge the validity of this provision.

The Court was required to determine three primary legal issues. First, whether, on its proper construction, section 35A of the Act empowered the Supreme Court to grant leave for the Commission to take evidence from a person subject to current federal criminal charges. Second, if such power existed, whether section 35A was invalid to that extent on the grounds that it contravened Chapter III of the Commonwealth Constitution by authorising a contempt of a State court exercising federal criminal jurisdiction, thereby impairing the institutional integrity of that court, or by impermissibly interfering with the accusatorial nature of a criminal trial. Third, the Court considered whether section 35A contravened section 80 of the Constitution by impermissibly altering fundamental features of a trial by jury for a federal offence.

The Court reasoned that, by virtue of section 12(1) of the *Interpretation Act 1987* (NSW), the reference to an "offence" in section 35A of the *Crime Commission Act 2012* (NSW) included offences against the laws of the Commonwealth, as no contrary intention appeared in the substantive Act. Accordingly, the Court held that section 35A did confer the power to grant leave to examine a person subject to pending federal criminal charges. The Court then unanimously dismissed the constitutional challenges, finding that the provision did not contravene Chapter III of the Constitution, nor did it impermissibly interfere with the accusatorial nature of a criminal trial or the fundamental features of a trial by jury under section 80. Consequently, the Court answered "Yes" to the first question and "No" to the second question, rendering the third and fourth questions moot.