New South Wales Crime Commission v D116

[2025] NSWSC 41

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v D116 [2025] NSWSC 41

Hearing dates:

4 February 2025

Date of orders:

4 February 2025

Decision date:

04 February 2025

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Orders in accordance with pars 1, 2 (amended to include the words “and any related bail applications made on behalf of the defendant”), 3, 4, 5 and 7 of the form of order and grant leave in accordance with par 6 of the form of order (with subpar (v) amended by deleting "court" and replacing it with "count of be") subject to the conditions identified in par 8 of the form of order. Note the undertaking given by the Commission in the form of order.

Catchwords:

CRIME – investigation of offences – New South Wales Crime Commission- application for leave pursuant to s 35A (4) Crime Commission Act 2012 (NSW) to examine a person in respect of offences with which they have already been charged – leave granted

CIVIL PROCEDURE – nondisclosure orders – s 7 Court Suppression and Non-publication Orders Act 2010 (NSW) – orders made on grounds in s 8(1)(a), (c) and (e)

Legislation Cited:

Crime Commission Act 2012 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases Cited:

D151, D152, D154 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143

New South Wales Crime Commission v D112 [2023] NSWSC 738

New South Wales Crime Commission v D181 [2015] NSWSC 1836

Category:

Principal judgment

Parties:

New South Wales Crime Commission (ex parte)

Representation:

Solicitor:
Ms M Batchelor (Plaintiff)

Solicitor for New South Wales Crime Commission

File Number(s):

2025/ 00044493

Publication restriction:

1. Until further order of this Court, pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 and upon the grounds set out in paragraphs 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 (subject to the pseudonym order);
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 and except for:
a. the proper execution of the orders of the Court;
b. the proper processes of the New South Wales Crime Commission (‘the Commission’) in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence relied on in support of the summons;
c. disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D116 for any offences the defendant may be charged with under the Crime Commission Act 2012, and any related bail applications made on behalf of the defendant;
d. disclosure to any lawyer engaged by D116 to appear for D116 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 completion of the Crime Commission’s current investigation or until further order of the Court, which may extend the duration of the suppression order.

Judgment

1. The New South Wales Crime Commission, by way of a summons filed in Court, has brought an application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) (the CC Act) to take evidence from a person accused of the offences listed in the schedule to the summons about those offences. The summons is supported by a confidential affidavit of an authorised officer of the Commission affirmed on 3 February 2025.

2. The summons also seeks orders that the Commission have leave to file the summons in court and the proceedings be heard instanter, ex parte and in camera. In addition, an order is sought that the defendant be referred to by the pseudonym D116 and non-disclosure orders are sought under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNPO Act) in respect of

1. the summons;

2. the name of the defendant;

3. the evidence relied on in support of the summons; and

4. any transcript of the hearing of the summons,

subject to the requirements of s 35A(8) of the CC Act and, except for

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

6. the proper processes of the Commission in pursuing its investigation pursuant to the CC Act as disclosed in evidence relied on in support of the summons; and

7. disclosure of material necessary for the prosecution of the defendant (referred to by the pseudonym D116) for offences under the CC Act, and any bail application made on behalf of the defendant.

3. As to the orders concerning the defendant’s name, an order is sought that those orders should be vacated when the defendant is no longer subject to the charges listed in the schedule to the summons. Finally, subject to an appropriate undertaking from the Commission, the Commission seeks an order that the confidential affidavit, being the evidence in support of the motion, be returned to the Commission for safe keeping.

4. The urgency and requirement for confidentiality or non-disclosure in these proceedings is explained in the confidential affidavit and arises out of the nature and seriousness of the subject matter under investigation and the fact that the notice issued by the Commission envisages a hearing on 6 February 2025. On the basis of the evidence in support of this application, which I accept, disclosure of the name of the defendant, the fact of this application and the investigation and its nature and subject matter have the very serious potential to undermine the effectiveness of the investigation and to put at risk the safety of the defendant. In the circumstances, I was satisfied that it is reasonably necessary and appropriate that the Commission have leave to file the summons in court and the proceedings be heard instanter, ex parte and in camera and I so order.

5. In addition, and on the same basis, I am satisfied that the orders sought under the CSNPO Act are necessary in order to prevent prejudice to the proper administration of justice, to protect the safety of any person and it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice, as referred to in s 8 (1)(a), (c) and (e) of the CSNPO Act. Given the nature of modern media, it is appropriate that such orders should apply through out the Commonwealth. The shortest time during which such orders should operate is until the completion of the Commission’s investigation, subject to any order of the Court which may be appropriate in light of changed circumstances.

6. In order to facilitate the conduct and recording of these proceedings, it is also reasonably necessary and appropriate to refer to the defendant by the pseudonym, D116. Similarly, the order that the confidential affidavit, being the evidence relied on in support of the summons be held by the solicitor for the Commission for storage subject to an undertaking to store the evidence safely and comply with any direction of the Court is appropriate in all the circumstances.

7. I note in this regard that the non-disclosure of the defendant’s name, and the pseudonym order, are only to be operative until the relevant charges are disposed of.

8. The order sought under s 35A of the CC Act is as follows:

“An order pursuant to subsection 35A(5) of the Crime Commission Act 2012 that leave is granted to the Commission to:

(a) question the Defendant, under section 24 of the Crime Commission Act 2012 at a hearing before the Commission; and

(b) require the Defendant to produce a document or thing under section 24 or section 29 of the Crime Commission Act 2012;

in relation to the subject matter of the alleged offences identified in the Schedule hereto.

SCHEDULE

The Defendant is currently charged with:

i. One charge of supply prohibited drug contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (‘DMT Act’)

ii. one charge of possess prohibited drug contrary to section 10(1) of the DMT Act;

iii. one count of participate in criminal group contribute to criminal activity-contrary to section 93T of the Crimes Act [1900] (NSW) (‘Crimes Act’);

iv. One count of destroy or damage property contrary to section 195(1) of the Crimes Act; and

v. One [count of] be carried in conveyance taken without consent of owner contrary to section 154A of the Crimes Act.”

9. Section 35A of the CC Act provides:

“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.

(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.”

10. It has been held that s 35A is not invalid as contravening Ch 3 and s 80 of the Constitution of the Commonwealth: D151, D152, D154 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143.

11. In observations which have been followed in a number of later cases, Hall J said in New South Wales Crime Commission v D181 [2015] NSWSC 1836 that the approach to be taken to an application under s 35A is 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)).”

12. It is not appropriate in this judgment to refer to the detail contained in the affidavit of the Commission's officer as this might tend to undermine the effectiveness of any investigation if it were disclosed. It is sufficient to note that the affidavit deals with the following matters:

1. The Commission's investigation and what it concerns;

2. The defendant's involvement in the matters being investigated;

3. The offences with which the defendant has been charged (as set out in the schedule quoted above) and the bases for these charges;

4. The grounds for the authorised officer's belief that the questioning of the defendant and/or the requirement for her to produce documents or things pursuant to ss 24 and/or 29 of the CC Act is in the public interest, notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offences;

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

6. The grounds for the authorised officer's suspicion that the questioning of the defendant or a requirement for her to produce documents or things pursuant to ss 24 and/or 29 of the CC Act is necessary to investigate the matter fully;

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

13. The supporting affidavit in the present case provides, in my view, evidence relevant to the grounds relied upon by the authorised officer, and that those grounds provide more than adequate support for the stated belief and suspicion held, as required by s 35A(4)(a)(i) and (ii) of the CC Act.

14. I am satisfied that any prejudicial effect that is likely to arise at the defendant's trial in relation to the current charges against her from the proposed questioning or requirement is outweighed by the public interest in using the Commission's powers to ensure that the matters referred to in the copy of the notice accompanying the summons issued to the defendant are fully investigated, particularly given the very serious nature of those matters.

15. The Commission has proposed five conditions on the grant of leave in order to minimise any prejudice to the defendant. These are in substance the same as the conditions which Davies J found to be sufficient and appropriate in New South Wales Crime Commission v D112 [2023] NSWSC 738. I accept that these conditions are sufficient in the present case.

16. Accordingly, in addition to the orders I have made concerning the leave being granted to file the summons in court and that the matter be heard instanter, ex parte and in camera, I make orders in accordance with pars 1, 2, 3, 4, 5 and 7 of the form of order which has been provided by the Commission, which I shall sign and date with today's date and to which the Court seal will be affixed.

17. In addition, I grant leave in accordance with par 6 of the form of order (with subpar (v) amended by deleting "court" and replacing it with "count of be") subject to the conditions identified in par 8 of the form of order.

18. I also note the undertaking given by the Commission in the form of order.

19. I note that the form of orders proposed by the Commission did not include a reference to "any related bail applications", which was an unintentional oversight. It does appear to me appropriate to include the reference to "any related bail applications" in par 2(c) of the form of orders, and I amend the form of orders I previously announced to include in par 2(c), after "2012", the words "and any related bail applications made on behalf of the defendant”.

20. I note that the affidavit containing the confidential material is returned to the Commission on the basis of the undertaking provided as to safe storage and compliance with any direction of the Court.

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Decision last updated: 18 February 2025