New South Wales Crime Commission v D154

[2019] NSWSC 1

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v D154 [2019] NSWSC 1
Hearing dates:	5 November 2018
Date of orders:	10 January 2019
Decision date:	10 January 2019
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1.   Notice of Motion filed 3 May 2016 is dismissed 2.   Costs on an ordinary basis in favour of the New South Wales Crime Commission
Catchwords:	CRIMINAL LAW – application to set aside orders granting leave to the NSW Crime Commission to examine a person charged with criminal offences – leave previously granted pursuant to s 35A Crime Commission Act 2012 (NSW) – significant delay following grant of leave without examination taking place – related proceedings taken in the Court of Appeal - asserted change of circumstances such that orders granting leave should be set aside – question of public interest in full investigation – criminal proceedings likely to be soon resolved – scope of rule 36.16(2)(b) Uniform Civil Procedure Rules 2005 (NSW) to allow evidence of events after the entry of challenged orders to be considered - asserted invalidity of s 35A under the Constitution – asserted abuse of process in agitating an argument previously advanced
Legislation Cited:	Constitution, Ch III Crime Commission Act 2012 (NSW) Supreme Court Rules 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Commissioner of Police v Elzein [2017] NSWCA 142) D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143; (2017) 94 NSWLR 738; (2017) 35 ALR 484 Gamser v Nominal Defendant (1977) 136 CLR 145 Grollow v Palmer (1995) 184 CLR 348 Johnson v Gore Wood & Co [2002] 2 AC 1 Love v Attorney General (NSW) (1990) 169 CLR 307 NSW Crime Commission v D150 [2015] NSWSC 1842 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 Smith v NSW Bar Association (1992) 176 CLR 256 USB AG v Tyne [2018] HCA 45
Category:	Principal judgment
Parties:	New South Wales Crime Commission (plaintiff / respondent to the application) D154 (defendant / applicant on the Motion)
Representation:	Counsel: Ms. J. Williams for NSW Crime Commission Mr. P. Lange for D154   Solicitors: Acting Crown Solicitor for NSW (plaintiff / respondent) Mitchell & Co Lawyers (defendant / applicant)
File Number(s):	2015/00357113
Publication restriction:	None

Judgment

1. HER HONOUR: This is an application brought by way of Notice of Motion filed on 3 May 2016 by the litigant known as D154. The Motion seeks orders to set aside other orders made by the Court ex parte on 3 December 2015.

2. The orders made on that date by Adamson J granted leave to the New South Wales Crime Commission (“the Commission”) pursuant to s 35A of the Crime Commission Act 2012 (NSW) to take evidence from D154 (and others, known as D150, D151, D152, D153, and D155) pursuant to s 24 of that Act, and to produce documents, pursuant to s 24 and / or s 29, in relation to matters the subject of criminal charges faced by each. The Court’s reasons for granting leave to the Commission are set out in NSW Crime Commission v D150 [2015] NSWSC 1842. Familiarity with that judgment is assumed for present purposes.

3. D154’s application is brought pursuant to rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (“the UCPR”). Rule 36.16(2)(b) provides:

36.16   Further power to set aside or vary judgment or order

(2)  The court may set aside or vary a judgment or order after it has been entered if:

(a) […]

(b)  it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order […].

4. Although the application is opposed by it, the Commission does not dispute that r 36.16(2)(b) provides power for the Court to make the order sought by D154.

The Chronology of Relevant Events

5. As is clear from the date upon which the Motion was filed and the date on which it was heard, there has been very significant delay in the determination of D154’s application. Since (at least part of) the reason for the delay is relevant to consideration of the issues, it is apposite to set out the history of the proceedings.

6. The matter was commenced by the summons filed by the Commission in Court with leave on 3 December 2015, the summons being heard and determined ex parte that same day.

7. Pursuant to the leave granted to it by the Court on 3 December 2015, a summons to appear before the Commission for examination was served upon D154 on or about 19 April 2016. It would appear that the delay of over four months by the Commission in summonsing D154 for examination was attributable to the fact that others of the associated litigants were scheduled to be examined between December 2015 and April 2016, before D154.

8. The examination of D154 pursuant to the summons was to occur on 28 April 2016, but was adjourned pending process being filed by him in this Court, challenging the summons. On 3 May 2016, D154’s Motion was filed.

9. The matter was subsequently joined to two similar applications, made by D151 and D152. Having been thereafter joined to a third similar matter (Commissioner of Police v Elzein [2017] NSWCA 142), the Motion came on for hearing before Rothman J on 29 November 2016.

10. On the hearing date, Rothman J was asked to remove the matters to the Court of Appeal to permit a number of questions of law to be determined. Orders were made by consent for that to occur.

11. On 24 February 2017 the matter came before the Court of Appeal. Six questions had been posed for the consideration of that Court, although ultimately only four, questions 1 – 4, were regarded as suitable for determination. Those questions addressed the construction of s 35A of the Crime Commission Act, and its constitutionality.

12. The Court of Appeal handed down its decision with respect to questions 1 – 4 on 21 June 2017: D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143; (2017) 94 NSWLR 738; (2017) 35 ALR 484.

13. On 17 November 2017 questions 5 and 6 were remitted to the Supreme Court from the Court of Appeal. It is not necessary to specifically consider the substance of the matters the subject of questions 5 and 6 as, in the proceedings before me D154 did not seek to agitate them.

14. On 9 August 2017, after the Court of Appeal’s decision was given, the Commission sought to ascertain from D154 whether he intended to pursue his application before this Court as, subject to that, it intended to examine him. Various discussions and negotiations between the respective legal representatives followed, with the decision taken by D154, and finally confirmed in about June 2018, that he would pursue proceedings in this Court. His examination was not pressed by the Commission as a consequence of his decision to proceed with his challenge to the orders granting leave for the examination to occur.

15. Protracted negotiations between D154 and the Commission took place with respect to the re-listing of the matter. Whilst some delay in attending to that task is attributable to changes in D154’s legal representation, it seems that neither party was motivated by any sense of urgency, since it took over a year for an approach to be made by the parties to the Registry of the Court for the case to be re-listed.

16. The matter was ultimately listed before the Registrar on 3 August 2018, and directions to facilitate the hearing of the Motion, listed on 5 November 2018, were made.

17. The matter proceeded to hearing on 5 November 2018, with the parties thereafter granted leave to file and serve any further written submissions, and a chronology of the matter (MFI 1, from which this history is taken), by 30 November 2018. Judgment was reserved pending receipt by the Court of that material.

The Motion brought by D154

18. The Notice of Motion filed on 3 May 2016 seeks the following order:

“An order setting aside the order made against the Defendant by Her Honour Justice Adamson dated 3 December, 2015, pursuant to Uniform Civil Procedure Rules 2005 r36.16(2)(b)”.

19. An order for costs is additionally sought.

20. In support of the Motion D154 read two affidavits from his solicitor, Gerard Mitchell. Mr Mitchell’s first affidavit, of 3 May 2016, provided the history of his client’s receipt of the summons to appear before the Crime Commission, and produced that and other relevant documentation, including a copy of the orders of this Court of 3 December 2015, and a notice of the possibility of seeking a review of the orders pursuant to r 36.16(2)(b) of the UCPR. In his second affidavit, of 22 October 2018, Mr Mitchell provided information as to the status of the criminal proceedings that are related to this application. In summary, the prosecutions of six persons, including D154, remain before the courts, for sentence or trial. All proceedings at first instance might be expected to be finalised by the middle of this year, with the sentence matters listed in February 2019.

21. D154’s argument in support of the Motion is advanced on two bases. Firstly, it is submitted that circumstances pertinent to the Crime Commission’s investigation have changed over the three years since the Court determined the Commission’s application for leave to examine him and, in the changed circumstances, it would not be appropriate to grant leave. Thus, it is argued, the decision to grant leave should be set aside. Secondly, it is contended that s 35A of the Crime Commission Act is unconstitutional, as it contravenes Chapter III of the Constitution by conferring an executive function on the Supreme Court, inconsistent with the exercise of judicial power. On that basis, it is submitted that the Court had no power to make the order granting leave to the Commission, and it should be set aside.

22. In that the second argument advanced by D154 raises a constitutional question, he was required to notify all state and federal Attorneys-General of it. The Court was advised that none wished to intervene in the proceedings.

The First Argument: that a Change in Circumstances Makes it Inappropriate for the Commission to be Granted Leave to Examine D154

23. Some six persons, including D154, have been criminally charged with offences alleging possession or attempted possession of unlawfully imported drugs, being methylamphetamine and 3,4-Methylenedioxyamphetamine, or MDMA. It is events connected with the criminal charges about which the Commission wishes to examine D154 and the other five defendants.

24. Four of the six defendants have entered pleas of guilty to the charges, and are to be sentenced, after the resolution of disputed facts at hearings listed in February 2019 before the District Court. Two of the defendants have entered pleas of not guilty and are to stand trial before that court, in May 2019. Having regard to that, it might reasonably be concluded that, at an early stage in 2019, the prosecution of each of at least those defendants who have pleaded guilty will have been finalised, and the Commission thus enabled to examine each without the leave of the Court.

25. The restriction imposed by s 35A of the Crime Commission Act only applies with respect to the examination of a person who is the subject of a criminal charge which is “current”. Relevantly, s 35A(1) and (2) is in these terms:

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.

26. The Commission’s power to summon witnesses and take evidence pursuant to s 24 is, in relation to a person not the subject of a “current charge”, a wide one.

27. The meaning of the phrase “ current charge” for the purposes of the Crime Commission Act is provided by s 4(1B):

(1B)  For the purposes of this Act, a person is the subject of a current charge for an offence if:

(a)  the person has been charged with the offence and the charge has not been withdrawn, and

(b)  any proceedings for the offence or any appeal against a court’s decision on the offence are pending or not concluded, and

(c)  the time for making any appeal or further appeal against a court’s decision on the offence has not expired or the appeal has not been withdrawn, and

(d)  a court has not made an order having the effect of granting a permanent stay of proceedings for the offence or any order so made ceases to have that effect.

28. D154 argues that, with respect to those persons who will be sentenced in the early part of 2019, the Commission will be able to examine each without restriction as to the knowledge each has of the importation and possession of unlawfully imported drugs. It is submitted that there is no reason to suppose that D154 has any greater knowledge of events the subject of the Commission’s investigation than do others who have been charged. Since some of those others will soon be able to be examined as to their respective knowledge of matters connected with the Commission’s investigation, there is no reason to examine D154, with the possible consequence of prejudice to him in pending criminal proceedings.

29. The question of potential prejudice to D154 in criminal proceedings against him is an important one, referred to in s 35A. Section 35A(4) and (5) of the Crime Commission Act provide:

(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.

30. D154 argues that, since the information it seeks to obtain by examining him is as likely to be available from one or more of the other defendants whose criminal proceedings will be shortly finalised, as it is from him, it cannot now be concluded that the possibility of potential prejudice to his trial caused by his examination is outweighed by the public interest in the Commission being able to pursue all aspects of its investigation.

The Second Argument: The Constitutional Question

31. As to the Constitutional argument advanced as an alternative, it is submitted that the power exercised by the Court pursuant to s 35A of the Crime Commission Act is an administrative power rather than a judicial one, and the statute is incompatible with Chapter III of the Constitution.

32. D154 argues that the Court’s task in determining an application brought pursuant to s 35A of the Crime Commission Act is not to quell a controversy between parties, but to determine whether an investigative step undertaken by an investigative agency should take place. The Court was referred to Grollow v Palmer (1995) 184 CLR 348 at 359 – 360 for a discussion of the nature of what is said to be a similar power, the power of the Court to issue warrants to investigative agencies. It is submitted that, like the power to issue warrants, the power to grant leave for an accused person to be examined by the Crime Commission is a function of the Court that is a step in the administrative process, and thus an administrative function: Love v Attorney General (NSW) (1990) 169 CLR 307 at 320 – 321.

33. Further, it is contended that s 35A requires the Court to consider matters of policy when determining whether to grant leave, this being an indication that the power conferred is not judicial in nature: R v Trade Practices Tribunal; ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 399 – 400 per Windeyer J; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 189.

34. The power conferred by s 35A is argued to be incompatible or substantially incompatible with the judicial function of the Court, and thus inconsistent with Chapter III of the Constitution. The provision is said to alter the fundamental nature of a criminal trial by providing a means by which an accused person can be compelled to answer questions touching upon matters connected with his or her trial, including by being required to answer incriminating questions.

35. Such a process was criticised by the High Court in X7 v Australian Crime Commission (2013) 248 CLR 92 at 131 [85], and in Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 230 [54] (these being the decisions the introduction of Division 6A of Part 2 and s 35A of the Crime Commission Act was intended to address).

The Position of the Crime Commission

36. The Crime Commission submits that neither basis advanced by D154 provides an avenue for the Court to vary or set aside the decision of Adamson J of 3 December 2015.

37. As to the “change of circumstances” argument, the Commission submits that the Court is not entitled in conducting the review of the decision provided for by r 36.16(2)(b) of the UCPR to have regard to any factual matters that have arisen after it was made, and thus could not consider the progress and current position of the associated criminal prosecutions. The Court was referred to Gamser v Nominal Defendant (1977) 136 CLR 145, wherein the High Court held that the Court of Appeal Division of the Supreme Court had no power to set aside and reopen judgment already given. Although that case turned upon a power of review other than r 36.16(2)(b), the Crime Commission argues that the relevant provision, Part 40, r 9(4) of the Supreme Court Rules 1970 (NSW), is analogous.

38. In Gamser, Aickin J, with whom Barwick CJ, and Gibbs and Stephen JJ agreed, held (at 154) that there was “no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of”, and neither in the circumstances of the case did the Supreme Court Rules allow for review because of changed circumstances after the final disposition of an appeal.

39. Alternatively, the Commission argues that, were the Court to conclude that it was open to consider a change of circumstances since the orders of 3 December 2015 were made, the asserted change relied upon by D154 is not something of significance, and is not in any event supported by evidence. It is contended that there is no evidence to support D154’s assertion that other defendants, who can be questioned after the finalisation of criminal charges, are as likely to be able to give relevant information as him. The evidence placed before the Court in December 2015 that there was a need to examine D154, and to do so with expedition, has not been contradicted.

40. Further, the Commission submits that the asserted change in the circumstances of the matter is not such as to affect the Court’s reasons for making the orders and, on that basis, r 36.16(2)(b) does not provide an avenue by which the decision of 3 December 2015 could be set aside.

41. As to the Constitutional argument, the Commission contends that to raise such an argument in circumstances where related or similar questions have already been decided by the Court of Appeal constitutes an abuse of process. It was pointed out that D154 was a party to the Court of Appeal proceedings, and agreed upon the questions put to the Court for determination. His current counsel was counsel for D151 and D152 before the Court of Appeal. The argument now raised by D154 is substantially similar to that already placed before the Court of Appeal, and to raise it before this Court is, either, an abuse of process, or an approach which he is estopped from taking.

Determination

The Change of Circumstances Issue

42. An application pursuant to r 36.16(2)(b) of the UCPR is one which entitles the parties to a review of the facts and circumstances that gave rise to the orders. It is not necessary to identify error in the original decision: D151, D152, D154 v New South Wales Crime Commission, at [8], per Basten JA. All that is necessary in the circumstances of this matter is that it is established that the orders were made in the absence of a party. There is no issue but that that is so.

43. The wording of r 36.16(2)(b) does not impose any restrictions on the Court in terms of its approach to that task; the power enlivened is a broad one. The Court “may set aside or vary” an order that was made ex parte. That must envisage that the party in whose absence the orders were made will have an opportunity to present such facts and make such arguments as may be relevant to the review of the orders. I do not read the provision as imposing any restriction upon the material that can be placed before the Court.

44. Nor do I see Gamser as directly applicable to the operation of r 36.16, even though the rule under consideration in that case is comparable to the present rule. The rule there considered was r 9 of Part 40 of the Supreme Court Rules, since repealed. It provided, relevantly:

9   Setting aside or varying judgment or order

(1)  […]

(2)  The Court may set aside or vary a judgment:

(a)  […], or

(b)  where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment, […]

(4)  In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

45. Nothing turns on the differing reference to “judgment” in r 40(2)(b), as opposed to “judgment or order” in r 36.16; or to the “entry” of the order in the former, and judgment having been “given” in the latter.

46. Although the provisions are so similar that Gamser must continue to be relevant authority to the operation of r 36.16, the difference here lies in the factual circumstances in which the rule was applied, rather than in the wording of the two rules. In Gamser the High Court was considering the application of Part 40 r 9 to proceedings on appeal, where the parties had been represented in the original proceedings, and on appeal, but where it was found that the plaintiff’s circumstances had changed after the judgment of the Court of Appeal was entered. The Court of Appeal found that it had no jurisdiction to set aside and vary its own judgment because of further evidence relevant to the quantum of damages coming to light. The High Court confirmed that approach as correct.

47. That is not the situation in this matter. Here, the Court made an order ex parte, without D154 having any opportunity to adduce evidence relevant to the question of his examination by the Crime Commission, or make any submissions for the Court’s considerations. The basis of the power provided by r 36.16(2)(b) is enlivened by that fact; that the defendant, who had no notice of the Commission’s application to the Court, had no opportunity to present evidence relevant to it, or be heard in submission. That must suggest that the purpose of any review under the rule is, at least in part, to give an opportunity to the defendant to do so. There is nothing in the wording of the rule to support a conclusion that the power to vary or set aside a judgment or order, once enlivened, is confined to a review by the Court of the evidence that was before the Court at first instance, or to evidence that was available to be placed before the Court as at the date on which the matter was heard.

48. The Court was advised by counsel at the hearing that there is no authority concerning the operation and scope of r 36.16(2)(b), although Smith v NSW Bar Association [1992] 176 CLR 256 was pointed to by D154 as helpful. That case considered the re-opening pursuant to Part 40, r 9(1) of a matter fully litigated at first instance and on appeal, prior to the entry of orders of the Court of Appeal. The appellant contended that there had been a factual error in the judgment of the Court of Appeal, and thus that the case should be re-opened. He also sought to tender further evidence relevant to a finding of fact made by the Court of Appeal.

49. Smith is factually different to the present matter, but the statement of principal in the judgment of Brennan J is instructive. At 265 his Honour (with whom Dawson, Toohey and Gaudron JJ agreed) said (with footnotes omitted),

It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. Part 40, r. 9(1) of the Supreme Court Rules NSW also provides that "[that] Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment". The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.

It is said in Ritchie's Supreme Court Procedure that the power to review a judgment in a case where the order has not been entered will not ordinarily be exercised "to permit a general re-opening". As a general statement that is correct, both as to whether leave to re-open will be granted and, if it has been, as to the nature of the review involved. But it is a general statement only and, once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken. Very little will be required in a case where, for example, all that is involved is a mathematical error in the calculation of some particular item of loss or damage. And, in the case of a factual error, the extent of the review will vary depending on whether the error goes to the heart of the matter or whether its significance is confined to some discrete subsidiary issue.

50. Although the re-opening of the judgment of the Court of Appeal that was considered in Smith was undertaken as a consequence of error by the court in circumstances where the orders had not been perfected, the decision is still informative as to the approach taken to considering fresh evidence. At 266 - 267 Brennan J said (with footnotes again omitted),

The question whether the appellant should have been allowed to call further evidence falls for answer in a context in which there was a re-opening of the central issue in the case.

[…]

It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been reopened by reason of error, further evidence can be called.

Not every case involving error will invite further evidence: it will depend entirely on the issue that is opened up. If the issue is one that invites further evidence, then, prima facie and subject to the ordinary rules of evidence, that evidence should be allowed. We say prima facie because there may be situations in which the particular evidence involved would cause embarrassment or prejudice such that, in the circumstances, it would be unfair to allow it.

51. The issue in the present matter is whether leave should have been granted to the Commission to examine D154 in circumstances where criminal proceedings against him were (and are) pending, and where he could be prejudiced at his trial as a consequence of the examination. In circumstances where D154 had no opportunity to be heard on the Commission’s application, I have concluded that it is open to the Court to receive and consider both evidence and submissions that D154 would or could have presented in December 2015 had he had the opportunity, and evidence and submissions which may be made as to present circumstances bearing on the question of the grant of leave.

52. However, whilst it is open to the Court to consider the evidence of the change of circumstances, I do not regard that evidence as having the degree of significance for which D154 contends.

53. Although I accept, as the Commission submits, that there is no evidence to support the claim that D154’s co-accused may be regarded as being in as good a position as him to provide useful information to the Commission on examination, in that the accused men are alleged to have acted in furtherance of a joint criminal enterprise, it might be reasonably inferred that such is likely to be the case. If the Commission was in a position to examine the co-accused without leave in the short term, as D154 submits, that would weigh in the balance against the grant of leave rather more heavily than was the position in December 2015.

54. I do not share D154’s confidence however that the charges against those of the co-accused who have pleaded guilty will soon cease to be “current charges” for the purpose of the Crime Commission Act. Recalling the definition of that phrase in s 4(1B) of the Act, it cannot be assumed that the proceedings against at least some of the co-accused will soon be concluded.

55. The evidence is that four of the five co-accused will be before the District Court for a disputed facts hearing in February 2019. There is no evidence as to the nature or extent of the dispute on the facts, or how long the hearing is expected to take. It is not clear whether the judge hearing the dispute will be in a position to immediately resolve it, or whether it will be a matter of sufficient size or complexity as to require some time for reflection. It is also unclear as to whether the sentencing court will be able to immediately proceed to sentence once the facts are determined, or whether the sentence hearing itself will be further adjourned. Sentence may, or may not, be imposed next month.

56. On the basis that sentence is imposed in February 2019, that is not the end of the matter in terms of the currency of the charges, since s 4(1B) refers to appellate proceedings. If there is an appeal or appeals against sentence, there will be further delay, in the order of many months or even, potentially, years.

57. Having regard to that uncertainty, I am unable to accept D154’s submission that it is likely that the Crime Commission will be able to examine other involved persons in the short term, thus making his examination less significant, and capable of being outweighed by the importance of preserving the integrity of his trial.

58. Whilst the changed circumstances are relevant to the question of the grant of leave, I do not regard the issue as one of sufficient significance to require the order made by Adamson J to be set aside. Her Honour’s reasons for the order continue to have force, even in the altered circumstances.

The Constitutional Question

59. This aspect of the argument may be more quickly dealt with since I have concluded that, either, the present contention does constitute an abuse of process or, if it does not, the question is sufficiently similar to those posed to the Court of Appeal to be determined by the answers given to them by that Court. On either basis, the applicant’s contention as to the unconstitutionality of s 35A of the Crime Commission Act must be rejected.

60. The argument to this Court is that s 35A is unconstitutional as it breaches Chapter III of the Constitution. That was part of the issue before the Court of Appeal in proceedings to which D154 was a party, in circumstances where he accepted the appropriateness of the questions put to the Court of Appeal, and adopted the submissions advanced by D151 and D152 relevant to them. The precise issue D154 raises here could have been readily raised before the Court of Appeal in terms, and dealt with authoritatively by that Court almost two years ago. The time to raise the present argument was in 2017, when the matter was before the Court of Appeal.

61. It can only be assumed that D154 made a forensic choice not to raise it there and at that time. He should be bound by that choice. To proceed on the basis that he is not is, in my opinion, to permit an abuse of the processes of the Court.

62. Whether D154’s conduct of the litigation amounts to an abuse of process is to be determined in all of the circumstances. In the recent decision of USB AG v Tyne [2018] HCA 45 the High Court quoted with approval from the judgment of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1, where his Lordship said, at 31, that such a decision must be,

a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.

63. D154 filed his application pursuant to r 36.16(2)(b) in May 2016. He subsequently chose not to proceed with it, but to join with D151 and D152 in seeking the removal of the matter into the Court of Appeal so that important Constitutional questions could be raised in that Court, and more authoritatively settled. He was involved in the formulation of the questions to be put to the Court of Appeal, and had a full opportunity to raise other related questions if he chose to do so. The questions ultimately put to and answered by the Court were:

Q1. Upon its proper construction, does s 35A of the Crime Commission Act 2012 (NSW) (“Act”) confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence from a person who is the subject of a current charge against the laws of the Commonwealth? Answer: Yes. Q2. If yes, is s 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances: (a) would contravene Ch III of the Constitution by reason that it would purport to authorize a contempt of a State court exercising federal criminal jurisdiction thereby impairing the institutional integrity of that court as a repository of judicial power of the Commonwealth; or (b) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with: (i) essential features of the judicial power of the Commonwealth, namely the accusatorial nature of a criminal trial (as considered in X7 v Australian Crime Commission (2013) 248 CLR 92); or (c) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of ‘trial … by jury’ on an indictment for an offence against a law of the Commonwealth? Answer: No. Q3. If yes, should s 35A of the Act be read down to avoid any operation that would be constitutionally invalid? Answer: Does not arise. Q4. If yes, how should s 35A of the Act be read down?” Answer: Does not arise.

64. It is clear from the judgment of the Court of Appeal that much of the argument before the Court was concerned with the nature of the power provided by s 35A, and whether that power was judicial in nature, or something other than a judicial power, in contravention of Chapter III of the Constitution. Question 2 specifically dealt with asserted Constitutional invalidity.

65. In those proceedings, the Commission was represented by both Queen’s and junior counsel, and the Attorney General for New South Wales appeared as intervener, represented by the Solicitor General and junior counsel. Those proceedings took some time to be resolved, and the expense to the parties and the delay attendant upon them is not an insignificant consideration.

66. After the Court of Appeal delivered judgment, D154 took about a year to restore the present matter to the list of this Court and seek determination of his Motion. The Commission’s examination and investigation was thereby further delayed.

67. In such circumstances D154’s attempt to have the Commission meet, and this Court determine, a Constitutional argument which could have been addressed almost two years ago is an abuse of the Court’s process.

68. Even if that conclusion is wrong, and acknowledging the slightly different nuance in the present argument, the conclusion of the Court of Appeal that the power provided by s 35A of the Crime Commission Act is judicial in nature is an answer to that argument. At [41] of D151, D152, D154 v New South Wales Crime Commission Basten JA, with whom Beazley ACJ agreed, said,

[Section 35A] validly confers power on a Supreme Court judge to determine whether the Commission may undertake the exercise of compulsory powers with respect to a person charged with a federal offence. Whether, in a particular case, leave should be granted is within the discretion of the judge. That is a conventional exercise of judicial power. It is, appropriately, the highest court in the State judicial structure which has power to ensure the fairness of trials in State courts, whether exercising State or federal jurisdiction.

69. The argument advanced by D154 as to the invalidity of s 35A must be rejected.

Conclusion

70. It follows that the Notice of Motion of 3 May 2016 must be dismissed. Costs should follow the cause in the usual event.

orders

71. The Court makes these orders:

1. The Notice of Motion filed by D154 on 3 May 2016 is dismissed.

2. Costs on an ordinary basis in favour of the New South Wales Crime Commission.

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Decision last updated: 10 January 2019