New South Wales Crime Commission v D115

Case •

[2024] NSWSC 450

•

22 April 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: New South Wales Crime Commission v D115 [2024] NSWSC 450
Hearing dates: 19 April 2024
Date of orders: 22 April 2024
Decision date: 22 April 2024
Jurisdiction:Common Law
Before: Hamill J
Decision:

(1) Pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) and upon the grounds set out in sections 8(1)(a) and (c), there is a suppression order over:

(a) the summons;

(b) the name of the defendant (subject to the pseudonym order that will follow);

(c) the evidence filed in support of the summons; and

(d) any transcript of the hearing of this matter.

(2) Order 1 is subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) and the following exceptions:

(a) the proper execution of the orders of the Court;

(b) the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons;

(c) disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D115 for any offences the defendant may be charged with under the Act;

(d) disclosure to any lawyers engaged by D115 to appear for him in or in preparation for the examination subject to these orders.

(3) Order 1 is to have effect throughout the Commonwealth.

(4) Order 1 is to continue until [REDACTED] the completion of the Crime Commission’s current investigation, whichever is the sooner, or until further order of the Court, which may extend the duration of the suppression order.

(5) The defendant is to be referred to by the pseudonym D115.

(6) Leave is granted pursuant to section 35A of the Act to the plaintiff, its officers and legal practitioners engaged or employed by it, to:

(a) question D115 at a hearing under section 24 of the Act; and

(b) require D115 to produce a document or thing under section 24 or section 29 of the Act;

in relation to the subject matter of the offences with which D115 is currently charged, namely:

(i) One count of [REDACTED];

(ii) One count of [REDACTED]; and

(iii) One count of [REDACTED].

(7) An order that, upon the defendant no longer being the subject of the charges identified in paragraph 6, orders 1(b) and 5 be vacated.

(8) This leave is granted subject to the following conditions:

(a) D115 is informed, before they give evidence in the proposed hearing, of section 42 of the Act and its effect, and be afforded an opportunity to obtain legal advice in respect of that section; in particular, D115’s right to object to providing evidence.

(b) The Commission maintains a record of all persons to whom the evidence of or a record of any of the evidence of D115 has been disclosed.

(c) The Commission takes steps to ensure that the investigators involved in D115’s arrest and who are still involved in ongoing inquiries relevant to the prosecution of D115 for the offences set out in paragraph 6 do not have access to the evidence obtained at the proposed hearing.

(d) The electronic document library relevant to the hearing process concerning D115 has been and will remain quarantined from the police officers investigating or involved in the prosecution of D115 for the offences set out in paragraph 6 and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to those officers.

(e) [REDACTED].

(f) The Commission’s officers are to take all reasonable steps to ensure, and satisfy themselves, that the defendant in fact receives the summons and notice by the time referred to in 8(e) and that he understands his right to legal representation and the provisions in s 42. Mere provision of the notice will not satisfy this condition.

(g) [REDACTED].

(h) The defendant and his legal representatives have a right to apply to seek to revoke or vary the order and grant of leave by urgent application to the duty Judge (or another Judge of this Court) if – and only if – further evidence is available that goes to the question of the likelihood of prejudice to D115’s trial on the offences for which he currently stands charged.

(i) Upon request by D115 or by any legal representative instructed by D115, the Commission will provide written certification that conditions 8(a) to 8(g) have been complied with.

Catchwords:

CIVIL LAW – compulsory examination before Crime Commission – requirement for leave by Supreme Court – ex parte application – constant guardian – where defendant foreign nation – charged with related offences – imposition of strict conditions on grant of leave – hybrid of competing considerations ­­­­

Legislation Cited:

Court Suppression and Non−Publication Act 2010 (NSW) ss 7, 8(1)(a), 8(1)(c), 8(1)(e)

Crime Commission Act 2012 (NSW) ss 24, 29, 35A, 42

Crime Commission Legislation Amendment Bill 2014 (NSW)

Crimes Act 1900 (NSW) s 193C

Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 36X

Cases Cited:

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

New South Wales Crime Commission v D109 [2015] NSWSC 1244

New South Wales Crime Commission v D110 [2022] NSWSC 1430

X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; [2013] HCA 29

Texts Cited:

Keith Mason and Larissa Reid, Constant Guardian, Changing Times: The Supreme Court of New South Wales 1824-2024 (2024, Judicial Commission of New South Wales)

Category:Procedural rulings
Parties: New South Wales Crime Commission (ex parte)
File Number(s): 20224/147322
Publication restriction:

(1) Pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) and upon the grounds set out in sections 8(1)(a) and (c), there is a suppression order over:
(a) the summons;
(b) the name of the defendant (subject to the pseudonym order that will follow);
(c) the evidence filed in support of the summons; and
(d) any transcript of the hearing of this matter.

(2) Order 1 is subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) and the following exceptions:
(a) the proper execution of the orders of the Court;
(b) the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons;
(c) disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D115 for any offences the defendant may be charged with under the Act;
(d) disclosure to any lawyers engaged by D115 to appear for him in or in preparation for the examination subject to these orders.

(3) Order 1 is to have effect throughout the Commonwealth.

(4) Order 1 is to continue until the [REDACTED] completion of the Crime Commission’s current investigation, whichever is the sooner, or until further order of the Court, which may extend the duration of the suppression order.

(5) The defendant is to be referred to by the pseudonym D115.

This judgment has been redacted to comply with the suppression order. The redactions will be removed upon the expiration of that order.

JUDGMENT

  1. On Friday last, 19 April 2024, the New South Wales Crime Commission (“the plaintiff” or “the Commission”) sought urgent orders pursuant to various provisions of the Crime Commission Act 2012 (NSW) (the “CC Act”) and related orders under the Courts Suppression and Non-Publication Orders Act 2010 (NSW) (the “Suppression Act”). Through no fault of the plaintiff, the matter was not brought to my attention until shortly before 3:00pm and, as a result, I was unable to reach a decision after the Court was constituted quickly and urgently at 3:10pm and submissions concluded shortly before 4:00pm. Because of the urgency of the matter, I indicated I would make a decision over the weekend and announce that decision at 9:30am this morning. It is now ten to ten.

  2. Some material was provided informally before the case commenced on Friday and, on the strength of that material, I acceded to the plaintiff’s application to hear the case in closed court. Despite substantial concerns about doing so, I was also persuaded by Mr Dunstan (who appeared for the plaintiff), to hear the matter ex parte – at least initially – pursuant to s 35A(4) of the CC Act. I was also persuaded that the defendant should be referred to as “D115”. All of those decisions were authorised by the CC Act and justified by the circumstances of the case.

  3. At the conclusion of the hearing, I reserved decision until today (Monday 22 April 2024) and made a suppression order over all of the evidence and submissions to which the proceedings related. The bases for making the suppression order were:

(1) The order was necessary to prevent prejudice to the proper administration of justice: Suppression Act, s 8(1)(a).

(2) The order was necessary to protect the safety of other witnesses who may give evidence at the Commission: Suppression Act, s 8(1)(c).

  1. The suppression order may also have been justified under the more general provision in s 8(1)(e) of the Suppression Act. The order is to have effect throughout Australia and will remain in force until the location of the drugs subject to the present application, or the completion of the Commission’s current investigation, or until further order of the Court, whichever is the sooner, noting that the order of the Court may be to extend the suppression order. The plaintiff is to notify the Court when either of the first two of those events occur. This judgment will be provided to the plaintiff who will have 48 hours (that is, until 12:00pm on 24 April 2024) to advise of any redactions it seeks to enable the judgment to be published on Caselaw NSW and other legal websites.

  2. The plaintiff was granted leave to file in court a summons seeking the orders and, once the Court was closed, read a confidential affidavit of Darren Bennett who is the plaintiff’s Executive Director (Criminal Investigations) on secondment from the NSW Police Force. Mr Bennett holds the rank of Detective Chief Superintendent with the police service, has access to the records of the plaintiff and is authorised to make the affidavit.

  3. The affidavit set out the circumstances in which the application was brought. At the risk of oversimplifying the situation, the critical, central and countervailing factual circumstances are:

  1. [REDACTED]

  2. Secondly, the defendant is facing prosecution for serious charges, [REDACTED] and the plaintiff seeks to compel him to answer questions contrary to his general right to silence.

  3. Thirdly, because of the factual matrix in which the criminal charges were laid, the compelled questioning, if permitted, will inevitably touch upon matters relevant to the factual circumstances and evidence relating to the offences with which he is charged. This must be so, and so much is acknowledged by the plaintiff. Otherwise, it would not be necessary to apply to this Court for leave under s 35A of the CC Act: see in particular s 35A(1).

  1. Section 35A provides:

(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.

(4) The Commission may apply to the Supreme Court ex parte for leave supported by an affidavit of an officer of the Commission stating--

(a) that the officer--

(i) believes that the questioning or requirement is in the public interest notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offence, and

(ii) suspects that the questioning or requirement is necessary to fully investigate the matter referred to in the copy of a notice accompanying a summons issued to the person, and

(b) the grounds on which the belief and suspicion are based.

(5) The Supreme Court may grant leave if it is satisfied that any prejudicial effect that is likely to arise to the person's trial from the proposed questioning or requirement is outweighed by the public interest in using the Commission's powers to ensure that a matter referred to in the copy of a notice accompanying a summons issued to the person is fully investigated.

(6) Leave may be granted unconditionally or subject to conditions imposed by the Supreme Court.

(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.

(9) Nothing in this section limits the application to an application for leave of any of the functions and procedures of the Supreme Court in relation to proceedings that may be dealt with ex parte before that Court.

  1. The difficulties of dealing with the matter ex parte were discussed in argument. Mr Dunstan made compelling submissions concerning the maintenance of the integrity and secrecy of the investigation, fears for the safety of other people and the potential movement of the drugs if the nature of the investigation was disclosed. He also pointed out that it may be that “confidential” evidence would be placed before the Court and not seen by the defendant or their lawyers, even if D115 was represented.

  2. While so much is true, where an application for leave is brought ex parte, the Court may not have evidence or submissions going to one of the relevant matters in sub-s (5) namely “any prejudicial effect that is likely to arise to the person's trial from the proposed questioning or requirement”. Apart from annexing a NSW Police “fact sheet” relating to the charges D115 currently faces, Mr Bennett’s affidavit is silent on that issue, except to point to the statutory protections within the CC Act and to refer to the steps the plaintiff might take to quarantine the evidence. Relevant and well-known case law explains the kind of prejudice that may arise in general terms,[1] but the Court does not have the benefit of submissions – made by a lawyer engaged to protect the defendant’s interests – directed to the individual facts of the case.

    1. See, for example, X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; [2013] HCA 29 (“X7”) and Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 (“Lee v The Queen”).

  3. In the course of submissions, Mr Dunstan submitted (with my emphasis):

“My submission is that having regard to the fact that the hearing – sorry the section of the Act provides that hearings under s 24 are to be conducted in private any application under s 35A for leave to issue a summons for hearings should be made ex parte. In that context or when I read the words in s 35A where they state the Commission may make an application ex parte, without seeking to diminish the Court’s power to control its own proceedings I see that or read that as a condition of the basis upon which the Commission may make the application, that is if the Commission is to make any application at all it has to be made ex parte as opposed to an alternative of making the application inter partes or in open court.” [2]

2. Tcpt, 19 April 2024, p 3.

  1. While it is not necessary to decide the issue in the circumstances of the present case, I am not entirely convinced that this is the correct construction of s 35A. Sub-s (2) provides that the Supreme Court may grant leave but does not dictate the manner in which the Commission might apply for a grant of leave. Sub-s (4) permits the application to be made ex parte but does not dictate it is to be so made. However, the context may support Mr Dunstan’s construction and I do not purport to resolve this issue of statutory interpretation against the Commission. The circumstances of the present case are such that it was appropriate for this application to be made on an ex parte basis.

  2. After I reserved, and with express approval, Mr Dunstan helpfully provided the explanatory note to the Crime Commission Legislation Amendment Bill 2014. The explanatory note makes clear that the amendments, which included the introduction of s 35A, were calculated to address issues raised by the High Court in the cases of X7 and Lee v The Queen (citations in footnote 1). In X7, Hayne and Bell JJ explained that “… permitting the Executive to ask and compelling answers to questions about the subject matter of a pending charge regardless of what use may be made of those answers at the trial of an accused person fundamentally alters the process of criminal justice.”

  3. The explanatory note included the following:

“Evidence of accused persons

Schedule 1 [6] prohibits a person who is the subject of a current charge from being compulsorily examined by, or from being required to produce a document or thing to, the Commission except in accordance with the leave of the Supreme Court. Leave may only be granted if the Court is satisfied that any prejudicial effect likely to arise to the person’s trial is outweighed by the public interest in having the matter referred to the Commission fully investigated. Evidence that is obtained from the person after leave is granted cannot be used against the person in any civil, criminal or disciplinary proceeding (other than for an offence against the Principal Act or an offence relating to falsity of evidence) but is not inadmissible as against other persons. Notice that leave has been granted is to be given to the person by the Commission. The general functions and procedures of the Supreme Court relating to ex parte proceedings will apply in respect of ex parte applications for leave.

Schedule 1 [7] provides for evidence (derivative evidence) that is obtained as a result of original evidence obtained by the questioning of a witness at a hearing of the Commission or the production of a document or thing to the Commission to be admissible in a civil or criminal proceeding, despite specified grounds on which it might otherwise be inadmissible. However, this does not extend to making any derivative evidence admissible against a person questioned in relation to the subject matter of the offence for which the person was charged unless the derivative evidence could have been obtained (or its significance understood) without the testimony of the person.”

  1. The CC Act, including the 2014 amendments, seeks to strike a balance between the fundamental alteration of the process of criminal justice represented by compulsory examination of persons who may be, or are, subject to criminal charges and the desirability of allowing institutions like the plaintiff to perform their functions to “prevent, disrupt and reduce the incidence of organised and other serious crime”: CC Act, s 3 (“Object”).

  2. In New South Wales Crime Commission v D109 [2015] NSWSC 1244 (“D109”), in a typically helpful and thoughtful, if “time pressured”, judgment, McCallum J (as the Chief Justice of the ACT then was) described at [18] the provision as a “hybrid” of various considerations:

“The questioning itself is conducted by officers of the Commission; the purpose is investigative. The role of the Court contemplated by the Act is but a blunt form of oversight; the Court is asked to make an assessment, prospectively and without hearing from the defendant, of broad notions of prejudice and public interest. I took the view that I was bound to approach that assessment on the premise that the Act deliberately and fundamentally alters the important common law principles explained by the majority in X7 without the protection of judicial oversight of the questioning considered important in Lee v NSW Crime Commission. Whether it does so validly is not for me to determine.”

  1. As blunt a form of oversight as it is, the requirement in s 35A(2) for this Court to grant leave before a compulsory examination takes place is an important protective function and it is a power that ought not to be exercised lightly. The onus is (in effect) cast on the Commission and, where the application is brought ex parte in accordance with the permission in s 35A(4), the Court must be vigilant to undertake the balancing exercise in a considered way. Without reference to the circumstances of the present case, the Court must not allow itself to become a rubber stamp. These applications will ordinarily come, as this one did, in the midst of a busy duty list and will often be made in circumstances of urgency. Without meaning to be pompous about it, and to borrow from the title of the book published recently to mark its 200th year, the Court must remain a “constant guardian” against, amongst other things, executive overreach. [3]

    3. Keith Mason and Larissa Reid, Constant Guardian, Changing Times: The Supreme Court of New South Wales 1824-2024 (2024, Judicial Commission of New South Wales).

  2. Further, the Court must consider the kinds of conditions that might be placed on the grant of leave: s 35A(6). In New South Wales Crime Commission v D110 [2022] NSWSC 1430, Lonergan J observed that, since the introduction of s 35A in 2014, various judges have fashioned conditions calculated to ensure that the rights of an individual who is to be subject to compulsory examination are adequately protected. A number of those conditions are included in the draft orders provided by the plaintiff in this case. There are also protections within the CC Act itself.

  3. Returning to whether leave should be granted in this case, in D109 McCallum J described the task at hand as follows at [24]:

“Section 35A(5) poses two tasks. The first is to consider whether I am satisfied that any prejudicial effect that is likely to arise to the defendant’s trial from the proposed questioning or requirement to produce a document or thing is outweighed by the public interest in the using the Commission’s powers to ensure that the matter in question is fully investigated. If I am not satisfied in those terms, there is no power to grant the leave sought. The second task is, if satisfied in those terms, to consider whether to exercise the discretion to grant leave. That discretion must be exercised judicially having regard to the objects of the Act.”

  1. As in D109, there is nothing in the affidavit relied on by the plaintiff that points to any prejudicial effect to the witness given the other protections in the CC Act against direct and derivative use. These protections are also set out by McCallum J at [25]-[29]. Having said, and as I have emphasised, I have heard no submissions from D115 or any lawyer on his behalf.

  2. On the other hand, the public interest in the recovery of the drugs and the investigation of the matters referred to in the notice annexed to Mr Bennett’s affidavit is substantial.

  3. On the evidence before the Court, I am satisfied that any prejudicial effect that is likely to arise to D115’s trial from the proposed questioning and requirement to produce documents is outweighed by the public interest in using the Commission’s powers to ensure that the matter referred to in the notice is properly investigated, and hopefully that the drugs are recovered.

  4. Based on the capacity of the Court to fashion further conditions to the grant of the leave, and its power to do so under sub-s (6) I am satisfied the discretion to grant leave should be exercised in favour of the plaintiff. However, I will add to the proposed orders, further conditions designed to ensure that:

  1. [REDACTED]

  2. There be a requirement that the Commission’s officers take all reasonable steps to ensure, and satisfy themselves, that the defendant actually receives the notice by that time and understands his right to legal representation and the provisions of s 42. Mere provision of the notice will not satisfy this condition [REDACTED].

  3. The defendant and his legal representatives have a right to apply to seek to revoke or vary the order and the grant of leave by urgent application to the duty Judge (or another Judge of this Court) if – and only if – further evidence is available that goes to the question of the prejudicial effect that is likely to arise by the questioning or the requirement to produce documents.

  1. The reason I am adding these conditions to those proposed by the plaintiff is that [REDACTED].

  2. For those reasons, which were prepared hurriedly, I make the following orders:

  1. Pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) and upon the grounds set out in sections 8(1)(a) and (c), there is a suppression order over:

  1. the summons;

  2. the name of the defendant (subject to the pseudonym order that will follow);

  3. the evidence filed in support of the summons; and

  4. any transcript of the hearing of this matter.

  1. Order 1 is subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) and the following exceptions:

  1. the proper execution of the orders of the Court;

  2. the proper processes of the New South Wales Crime Commission (“the Commission”) in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons;

  3. disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D115 for any offences the defendant may be charged with under the Act;

  4. disclosure to any lawyers engaged by D115 to appear for him in or in preparation for the examination subject to these orders.

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

  2. Order 1 is to continue until the [REDACTED] Crime Commission’s current investigation, whichever is the sooner, or until further order of the Court, which may extend the duration of the suppression order.

  3. The defendant is to be referred to by the pseudonym D115.

  4. Leave is granted pursuant to section 35A of the Act to the plaintiff, its officers and legal practitioners engaged or employed by it, to:

  1. question D115 at a hearing under section 24 of the Act; and

  2. require D115 to produce a document or thing under section 24 or section 29 of the Act;

in relation to the subject matter of the offences with which D115 is currently charged, namely:

  1. One count of [REDACTED];

  2. One count of [REDACTED]; and

  3. One count of [REDACTED].

  1. An order that, upon the defendant no longer being the subject of the charges identified in paragraph 6, orders 1(b) and 5 be vacated.

  2. This leave is granted subject to the following conditions:

  1. D115 is informed, before they give evidence in the proposed hearing, of section 42 of the Act and its effect, and be afforded an opportunity to obtain legal advice in respect of that section; in particular, D115’s right to object to providing evidence.

  2. The Commission maintains a record of all persons to whom the evidence of or a record of any of the evidence of D115 has been disclosed.

  3. The Commission takes steps to ensure that the investigators involved in D115’s arrest and who are still involved in ongoing inquiries relevant to the prosecution of D115 for the offences set out in paragraph 6 do not have access to the evidence obtained at the proposed hearing.

  4. The electronic document library relevant to the hearing process concerning D115 has been and will remain quarantined from the police officers investigating or involved in the prosecution of D115 for the offences set out in paragraph 6 and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to those officers.

  5. [REDACTED].

  6. The Commission’s officers are to take all reasonable steps to ensure, and satisfy themselves, that the defendant in fact receives the summons and notice by the time referred to in 8(e) and that he understands his right to legal representation and the provisions in s 42. Mere provision of the notice will not satisfy this condition.

  7. [REDACTED].

  8. The defendant and his legal representatives have a right to apply to seek to revoke or vary the order and grant of leave by urgent application to the duty Judge (or another Judge of this Court) if – and only if – further evidence is available that goes to the question of the likelihood of prejudice to D115’s trial on the offences for which he currently stands charged.

  9. Upon request by D115 or by any legal representative instructed by D115, the Commission will provide written certification that conditions 8(a) to 8(g) have been complied with.

**********

Endnotes

Decision last updated: 23 April 2024

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Lee v The Queen [2014] HCA 20
Helicopter Resources Pty Ltd v Commonwealth of Australia (No 2) [2018] FCA 991
Lee v The Queen [2014] HCA 20