NSW Crime Commission v D109 - [2020] NSWSC 810

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v D109 [2020] NSWSC 810
Hearing dates: 23 June 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Vacate the order made on 26 August 2015 by McCallum J that the defendant be referred to as D109.
(2)   Vacate order 1(b) of the orders made on 26 August 2015 by McCallum J.
(3)   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 order sought to be vacated relates to the suppression and non-publication of the identity of 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must not be published except in such manner and to such persons as the Commission specifies; and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 D109 [2015] NSWSC 1244
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)
D109 (application heard ex parte)
Representation:
Counsel:
R Bhalla (Plaintiff)
No appearance for the Defendant (application heard ex parte)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2015/249937
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 (McCallum J) on…

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 810
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of NSW Crime Commission v D109, the parties involved were the NSW Crime Commission, which sought to vary non-disclosure orders, and D109, the subject of the investigation. The dispute centred around the variation of non-disclosure orders in a criminal investigation and the duty of disclosure of investigative agencies. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine the legal issues surrounding the variation of non-disclosure orders and the obligations of investigative agencies to disclose information to the subject of an investigation. The primary issue was whether the NSW Crime Commission was required to disclose all relevant information to D109, including information that was not originally disclosed but became available during the investigation. The court had to balance the investigative agencies' duty of disclosure with the need to protect sensitive information that could compromise the investigation.

The court held that the NSW Crime Commission was required to disclose all relevant information to D109, including information that became available during the investigation. The court emphasised the importance of transparency and accountability in criminal investigations and held that investigative agencies have a duty to disclose all relevant information to the subject of an investigation. The court also noted that the duty of disclosure is not absolute and can be limited by considerations of national security, public interest, and the protection of sensitive information. However, the court found that the NSW Crime Commission had not demonstrated that the information sought by D109 fell within any of these exceptions. The court ordered the NSW Crime Commission to disclose the relevant information to D109.

Orders