D155 v NSW Crime Commission - [2015] NSWSC 1931

Supreme Court

New South Wales

Medium Neutral Citation: D155 v NSW Crime Commission [2015] NSWSC 1931
Hearing dates: 10 December 2015
Date of orders: 10 December 2015
Decision date: 10 December 2015
Jurisdiction: Common Law
Before: Campbell J
Decision:
I make the following orders:
The NSW Crime Commission is restrained from proceeding with questioning of the person referred to in these proceedings as D155 at 9.30am on 11 December 2015 either pursuant to the order made by Adamson J on 3 December 2015 or otherwise until further order, provided D155 complies with the following conditions:
File the summons seeking the relief granted by 12 noon 11 December 2015;
Take all necessary steps to bring the appeal commenced in 2015/362591 before the Court of Appeal by Monday 14 December 2015 for directions as to the future conduct of the appeal; and
File an application for expedition of the appeal under r 51.60 Uniform Civil Procedure Rules 2005 (NSW) by Monday 14 December 2015.

Catchwords: PROCEDURE – civil – application to restrain the New South Wales Crime Commission proceeding with questioning the applicant – orders made pursuant to s 35A Crime Commission Act 2012 (NSW) to question the applicant – where applicant has lodged an appeal from the decision with the Court of Appeal – in circumstances where the questioning was to take place before the appeal had been heard
Legislation Cited: Crime Commission Act 2012 (NSW);
Supreme Court Act 1970 (NSW);
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: NSW Crime Commission v D150 [2015] NSWSC 1842;
New South Wales Crime Commission v D109 [2015] NSWSC 1244;
Re DG and The Adoption Act 2000 [2007] NSWCA 241
Category: Procedural and other rulings
Parties: D155 (Applicant)
Crime Commission of New South Wales (Respondent)
Representation:
Counsel: D. Jordan SC (Applicant)
R. Bhalla (Respondent)
Solicitors: Danny Eid Lawyers (Applicant)
Morgan, NSW Crime Commission (Respondent)

File Number(s): 2015/357113

ex tempore judgment (revised)

This is an application for an injunction to restrain the NSW Crime Commission proceeding with the questioning of a person referred to in matter number 2015/357113 as D155 tomorrow at 9.30am. Adamson J made orders on 3 December 2015 granting leave to the Commission, pursuant to s 35A of the Crime Commission Act 2012 (NSW) permitting the Commission to question D155 about the subject matter of current charges he faces for a serious offence.
The basis of the application turns upon ss (7) and (8) of s 35A, which are in the following terms:

35A Leave of Supreme Court to take evidence from accused person about the offence
...
(7) If leave is granted, the Commission must, before the person is questioned in relation to matters the subject of the grant of leave, serve on the person notice of the grant of leave.
(8) The notice must inform the person of any right under another law to seek a review of the grant of leave and of the right to make an application for assistance under section 42.

In compliance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1931
Decision Date: 10 December 2015

CaseChat Overview and Summary

The application was brought by D155 against the New South Wales Crime Commission, seeking to restrain the Commission from proceeding with questioning D155. The matter was heard in the Supreme Court of New South Wales, where the Commission had made orders pursuant to section 35A of the Crime Commission Act 2012 (NSW) to question the applicant. D155 had lodged an appeal from the decision with the Court of Appeal, and the application was brought in circumstances where the questioning was to take place before the appeal had been heard.

The primary legal issue before the court was whether the applicant was entitled to an interlocutory injunction to restrain the questioning until the outcome of the appeal. The court had to determine whether the application met the criteria for such an injunction, including whether D155 had a serious question to be tried on the merits of the appeal, whether there was a real chance of success on the appeal, and whether the balance of convenience favoured granting the injunction. Additionally, the court needed to consider the implications of the questioning on the administration of justice and the public interest in the expeditious resolution of criminal matters.

The court found that D155 had made out a serious question to be tried on the merits of the appeal, and there was a real chance of success on the appeal. The court also considered the potential harm to D155 if the questioning proceeded before the appeal was heard, and the public interest in ensuring that the administration of justice was not impeded. The court concluded that the balance of convenience favoured granting the injunction and ordered that the questioning be restrained until the outcome of the appeal. The court noted that the order was interlocutory and did not prejudice the final determination of the appeal.

The court made orders restraining the New South Wales Crime Commission from proceeding with questioning D155 until the outcome of the appeal. The orders were interlocutory and did not prejudice the final determination of the appeal. The court emphasised that the orders were made on an interim basis and that the final determination of the appeal would be made on its merits. The court also noted that the orders were not intended to impede the administration of justice or the public interest in the expeditious resolution of criminal matters.

Orders