New South Wales Crime Commission v D101

[2016] NSWSC 548

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v D101 [2016] NSWSC 548

Hearing dates:

28 April 2016

Date of orders:

28 April 2016

Decision date:

06 May 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Until further order of this court, pursuant to section 7 of the Court Suppression and Non-publication Orders Act 2010 and upon the grounds set out in s. 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of:

 

a. the summons;
b. the name of the Defendant;
c. the evidence filed in support of the summons; and
d. any transcript of the hearing of this matter, subject to the requirements of subsection 35A (8) of the Crime Commission Act 2012 and except for:
e. the proper execution of the orders of the Court; and
f. the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence filed in support of the summons.

 

2. Order 1 is to have effect throughout the Commonwealth.

 

3. Leave is granted pursuant to section 35A of the Crime Commission Act 2012 to the Plaintiff, its officers and legal practitioners engaged or employed by it, to question and make full requirements of D101 during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with, namely offences contrary to Section 307.5(1) with section 11.1(1) and 11.2(1) of the Criminal Code 1995 (Cth).

 

4. Order that the Defendant be referred to by the pseudonym D101.

 

Leave granted under s 35A with the following conditions:

 

(1) The defendant is to be informed, before he gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Act and afforded the opportunity to obtain legal advice in respect of those provisions, in particular, his right to object to providing evidence.

 

(2) The Commission is to maintain a record of all persons to whom the evidence of D101 or a record of any of his evidence has been disclosed, such record to be made available for inspection by D101 upon request by him or by any legal representative instructed by him.

 

(3) The Commission is to take steps to ensure that the investigators involved in D101's arrest and who are still involved in ongoing inquiries relevant to his prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission.

 (4) The electronic document library relevant to the hearing process concerning D101 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning his prosecution and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to such investigating police officers.

Catchwords:

CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offence – public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion – conditions to minimise prejudice to accused person

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crime Commission Act 2012 (NSW)
Criminal Code 1995 (Cth)

Cases Cited:

New South Wales Crime Commission v D109 [2015] NSWSC 1244
New South Wales Crime Commission v D181 [2015] NSWSC 1836
NSW Crime Commission v D150 [2015] NSWSC 1842

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
D101(Defendant)

Representation:

Counsel:
M Heard (Plaintiff)
Ex parte

  Solicitors:
NSW Crime Commission (Plaintiff)
Ex parte

File Number(s):

2016/130386

Judgment

1. The New South Wales Crime Commission by way of Summons brought an ex parte application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) to take evidence from a person accused of an offence about that offence. The matter came before me as duty judge on an urgent basis in circumstances where the examination of the person concerned had already been fixed for 12 May 2016.

2. The Summons is supported by an affidavit affirmed by an officer of the Commission on 26 April 2016.

3. The Summons sought an order that the proceedings be heard instanter together with an order that the proceedings be heard in camera.

4. In addition, the Summons sought non-disclosure and non-publication orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of:

(a)   The Summons;

(b)   The name of the Defendant;

(c)   The evidence filed in support of the Summons; and

(d)   Any transcript of the Summons.

subject to the requirements of sub-s 35A(8) of the Crime Commission Act and except for:

(e)   the proper execution of the orders of the Court; and

(f)   the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Crime Commission Act as    disclosed in evidence filed in support of this Summons.

5. On 28 April 2016 I made a non-disclosure and non-publication order in accordance with s 7 of the Court Suppression and Non-publication Orders Act and proceeded to hear the application under s 35A(4) in a closed court on an ex parte basis.

6. At the hearing I accepted as Ms Heard for the Commission proposed, that it was appropriate that the Defendant be identified by a pseudonym. I ordered that the Defendant be referred to as D101.

7. Section 35A of the Crime Commission Act 2012 provides:

35A Leave of Supreme Court to take evidence from accused person about the offence

(1)   This section applies to a person who is the subject of a current charge for an offence, and relates to the taking of evidence from the person in relation to the subject matter of the offence.

(2)   The person cannot be:

(a) questioned under section 24 at a hearing before the Commission, or

(b) required under section 24 or 29 to produce a document or thing,

in relation to matters relating to the subject matter of the offence without the leave of the Supreme Court.

(3)   Evidence obtained pursuant to leave granted for the purposes of this section cannot be used against the person in any civil or criminal proceeding (other than a proceeding for an offence against this Act or an offence relating to the falsity of evidence given by the witness) or in any disciplinary proceeding, but is not inadmissible as against other persons.

Note. See section 39A (3) and (4) for derivative evidence.

8. Applications under s 35A have been the subject of three recent judgments being New South Wales Crime Commission v D109 [2015] NSWSC 1244 (McCallum J), New South Wales Crime Commission v D181 [2015] NSWSC 1836 (Hall J) and NSW Crime Commission v D150 [2015] NSWSC 1842 (Adamson J). Those judgments have set out and discussed the background to the enactment of s 35A. I have read those judgments and it is not necessary to repeat the analyses contained in them. However, I gratefully set out and adopt what Hall J said in New South Wales Crime Commission v D181 at [20] as follows:

[20] In an application for a grant of leave under s 35A, in my opinion the following matters arise:

(1) The supporting affidavit of the authorised officer must establish that he or she holds the requisite state of belief and suspicion referred to in s 35A(4)(a)(i) and (ii) and the grounds for such belief and suspicion are stated in accordance with s 35A(4)(b). Those requirements, as I have stated, were met in this application.

(2) In order for the Supreme Court to be “satisfied” of the matters referred to in s 35A(5), the Court is required to assess:

(a) Firstly, the question of “prejudicial effect” as referred to in s 35A(5).

(b)   Secondly, the question of the “public interest” in the use of the Commission’s powers in order to ensure that a matter therein referred to is “fully investigated”.

(c) Thirdly, whether the “public interest” referred to in s 35A(5) outweighs any “prejudicial effect” that is likely to arise to the person’s trial from the proposed questioning or requirement.

(3) In undertaking the assessment referred to in 2(a) and (b) and in making the determination referred to in 2(c) above it is clear that the Court is required to examine and evaluate whether the supporting affidavit establishes the matters to which s 35A refer including, in particular, the “grounds” on which the officer’s stated belief and suspicion are based.

(4) Given the evident importance of the grounds upon which it is stated that the relevant belief and suspicion are based to the making of a decision by this Court hearing an application for leave under s 35A(5), it is necessary, in my opinion, that the supporting affidavit discloses the existence of facts relevant to the grounds relied upon as supporting the requisite states of mind in the authorised officer (i.e. the belief and suspicion specified in s 35A(4)(b)).

9. It is not appropriate in this judgment to refer to the detail contained in the affidavit of the Commission’s officer. It is sufficient to note that the affidavit deals with the following matters:

(i)   The Commission’s investigation and what it concerns;

(ii)   The Defendant’s involvement in the matters being investigated;

(iii)   The charging of the Defendant with two offences both contrary to Section 307.5(1) (with sections 11.1 and 11.2) of the Criminal Code Act    1995 (Cth) as follows:

1. aid and abet, counsel and procure the commission of an offence by another person, namely the attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, and

2. aid and abet, counsel and procure the commission of an offence by another person, namely the attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA);

(iv) The grounds for the authorised officer’s belief that the questioning of the Defendant and/or requiring him to produce documents or things pursuant to ss 24 and/or 29 of the Act is in the public interest, notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offences;

(v) The evidence that is relevant to and relied upon as supporting the stated belief as required by s 35A(4)(a)(i);

(vi) The grounds for the authorised officer’s suspicion that the questioning of the Defendant or a requirement for him to produce documents or things pursuant to ss 24 and/or 29 of the Act is necessary to investigate the matter fully;

(vii) The evidence that is relevant to and relied upon as supporting the above stated suspicion in terms of s 35A(4)(a)(ii).

10. I am satisfied that the supporting affidavit provides evidence relevant to the grounds relied upon by the authorised officer and that those grounds well support the stated belief and suspicion held in terms of s 35A(4)(a)(i) and (ii) of the Act.

11. I am satisfied that any prejudicial effect that is likely to arise at the Defendant’s trial in relation to the current charges against him from the proposed questioning or requirement is outweighed by the public interest in using the Commission’s powers to ensure that the matter referred to in the copy of the notice accompanying the Summons issued to the Defendant is fully investigated.

12. I consider, however, that four conditions should be imposed upon the grant of leave to minimise any prejudice to the Defendant.

13. One further matter should be stated. It is not appropriate in the ordinary course, although there may be exceptional cases, for the Commission to appoint a time for the hearing of an examination and then approach the Duty Judge as a matter of urgency to have orders made and reasons provided. Duty judges act under considerable restraints of time because of the amount of both in-court and out-of-court applications. Further, the appointment of an examination prior to leave being granted contains at least a prima facie assumption that leave will be given. Reference was made to this matter by McCallum J in D109 at [1] to [4].

14. Accordingly, I make the following orders:

(1) Leave is granted pursuant to section 35A of the Crime Commission Act 2012 to the Plaintiff, its officers and legal practitioners engaged or employed by it, to question and make full requirements of D101 during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with, namely offences contrary to Section 307.5(1) with section 11.1(1) and 11.2(1) of the Criminal Code 1995 (Cth).

(2)   Order that the Defendant be referred to by the pseudonym D101.

Leave granted under s 35A with the following conditions:

1.   The defendant is to be informed, before he gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Act and afforded the opportunity to obtain legal advice in respect of those provisions, in particular, his right to object to providing evidence.

2.   The Commission is to maintain a record of all persons to whom the evidence of D101 or a record of any of his evidence has been disclosed, such record to be made available for inspection by D101 upon request by him or by any legal representative instructed by him.

3.   The Commission is to take steps to ensure that the investigators involved in D101's arrest and who are still involved in ongoing inquiries    relevant to his prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission.

4.   The electronic document library relevant to the hearing process concerning D101 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning his prosecution and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to such investigating police officers.

**********

Decision last updated: 06 May 2016