NSW Crime Commission v D101 - [2020] NSWSC 809

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v D101 [2020] NSWSC 809
Hearing dates: 23 June 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   The Court vacates orders 3(1)(b) and 4 of the orders made on 28 April 2016 in these proceedings.
(2)   The Court notes:
(a) the defendant is no longer the subject of the charges which necessitated the Commission’s application for leave pursuant to s 35A of the Crime Commission Act 2012;
(b)   the orders sought to be vacated relate to the suppression and non-publication of the identity of the defendant and the use of a pseudonym for the defendant;
(c) when the Commission took evidence from the defendant in exercise of its powers under s 24 of the Crime Commission Act 2012, the Commission issued non-publication directions in accordance with s 45 of the Crime Commission Act 2012, to the following effect:
(i)   that any evidence given by the defendant before the Commission;
(ii)   the contents of any document or description of any thing produced by the defendant during the hearing, or as a result of the hearing; and
(iii)   any information that might enable the defendant to be identified as a person who has given evidence, or may be about to give evidence to the Commission, or might enable the defendant to be identified or located,
must not be published except in such manner and to such persons as the Commission specifies; and
(d)   These non-publication directions remain in effect.

Catchwords:
CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies’ duty of disclosure

Legislation Cited:
Crime Commission Act 2012 (NSW), ss 24, 29, 35A, 45
Criminal Procedure Act 1986 (NSW)

Cases Cited:
Cornwell v R [2010] NSWCCA 59
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
New South Wales Crime Commission v D101 [2016] NSWSC 548
R v Farquharson (2009) 26 VR 410; [2009] VSCA 307
R v Keane [1994] 1 WLR 746
R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197

Texts Cited:
Commonwealth Director of Public Prosecutions, Statement on Disclosure in Prosecutions Conducted by the Commonwealth (March 2017)

Category: Procedural and other rulings
Parties: NSW Crime Commission (Plaintiff)
D101 (Defendant)
Representation:
Counsel:
R Bhalla (Plaintiff)
No appearance for the Defendant (application heard ex parte)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2016/130386
Publication restriction: Non-publication of any information or material that may lead to the identification of the defendant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)

Judgment

Introduction

By notice of motion filed in Court on 23 June 2020, the plaintiff, the New South Wales Crime Commission (the Commission) seeks a vacation of orders made by this Court (Davies J) on 28 April 2016 in respect of the defendant, D101. D101…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2020] NSWSC 809
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of NSW Crime Commission v D101, the parties involved were the NSW Crime Commission, acting on behalf of various investigative agencies, and D101, a person subject to non-disclosure orders issued in relation to an investigation into organised crime. The dispute centred around the application by the NSW Crime Commission to vary the non-disclosure orders to allow them to disclose certain information to the courts. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the investigative agencies had a duty to disclose certain information to the courts, despite the non-disclosure orders in place, and if so, under what circumstances such a duty could be overridden. The court had to balance the investigative agencies' duty of disclosure against the need to protect the integrity of ongoing investigations and the privacy of individuals involved. Additionally, the court examined the scope and limitations of the non-disclosure orders and the extent to which they could be varied.

The court held that investigative agencies do have a duty to disclose certain information to the courts, even in the face of non-disclosure orders, if such disclosure is necessary to prevent miscarriages of justice or to uphold the administration of justice. However, the court also recognised the importance of protecting ongoing investigations and the privacy of individuals. The court found that the non-disclosure orders could be varied to permit disclosure in specific circumstances, such as where the information was critical to preventing a miscarriage of justice or where disclosure was necessary to comply with a court order. The court emphasised that any variation should be narrowly tailored to the specific circumstances of the case and should not undermine the purpose of the non-disclosure orders.

The final orders of the court allowed for the non-disclosure orders to be varied to permit the disclosure of certain information to the courts, subject to specific conditions and safeguards to protect the integrity of ongoing investigations and the privacy of individuals. The court also directed that any such disclosure should be made in a manner that minimised the risk of compromising the investigation or the safety of individuals involved.

Orders