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must not be published except in such manner and to such persons as the Commission specifies; and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

1. 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 26 August 2015 in respect of the defendant, D109. D109 is presently subject to a non-publication direction in respect of his or her name made by the Commission under s 45 of the Crime Commission Act 2012 (NSW) (the Act).

2. The Commission also sought an order that the court be closed for the hearing of the notice of motion. I made that order on 23 June 2020 before the commencement of the hearing of the motion as I was satisfied, having regard to the orders sought and the contents of the affidavit of Timothy O’Connor affirmed 9 June 2020, that this course was necessary to protect the safety of D109.

Factual background

3. Before addressing the question whether it is appropriate to vacate the orders previously made, it is necessary to summarise the context in which the application is made.

4. The Commission commenced the proceedings by filing a summons in court on 25 August 2015 for orders including an order under s 35A of the Act. Section 35A provides that a person who is the subject of a current charge cannot be questioned by, or required to produce any document or thing to, the Commission. At that time, D109 had been charged with an offence or offences. The application was heard ex parte in closed court by McCallum J, as duty judge on 25 August 2015. It is apparent from her Honour’s reasons that she ordered that the defendant be referred to as D109, although this was (incorrectly) recorded as a notation in JusticeLink rather than the order it was.

5. On the following day, 26 August 2015, McCallum J granted leave to the Commission to question D109 and made orders which included the following:

Order 1

Until further order of this Court, pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 and upon the grounds set out in s 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of:

…

b. the name of the defendant

…

6. As referred to above, in the record of orders, her Honour’s pseudonym order made during the hearing was included as a notation. Her Honour published reasons for decision on 28 August 2015: New South Wales Crime Commission v D109 [2015] NSWSC 1244.

7. Following the grant of leave by McCallum J, the Commission issued a non-publication direction pursuant to s 45 of the Act which covered any evidence given by D109 to the Commission, the contents of any document or description of anything produced by D109 to the Commission either during or as a consequence of the hearing and any information that might enable D109 to be identified as a person who has given evidence or may be about to give evidence to the Commission or which might enable D109 to be identified or located.

8. The Commission took evidence from D109 in September 2015.

9. In August 2017, D109 was convicted of charges which had been pending at the time the Commission had commenced these proceedings. As the charges have been finally dealt with, D109 is, in effect, in the position of a mere witness who has been compelled to give evidence before the Commission.

Relevant legislative provisions

10. The Commission is empowered by s 24 of the Act to summon witnesses and take evidence from them. By s 29, the Commission may obtain the attendance of any person or the production of any document or thing by notice.

11. Section 35A of the Act provides that a person who is the subject of a current charge cannot be questioned by the Commission or required to produce a document or thing to the Commission without the leave of this Court.

12. Section 45 of the Act confers power on the Commission to direct that any evidence given before it, any document or thing produced to it or seized by it, the fact that a person has given or is about to give evidence before it, or any information tending to identify such person not be published or must not be published except in the manner and to such persons as the Commission specifies.

Consideration

13. Mr O’Connor deposed that he believes that D109’s evidence to the Commission may be relevant to prosecutions of other persons. In these circumstances, he considered that the Commission, as an investigative body, would be required to disclose facts and information about this evidence to the Commonwealth Director of Public Prosecutions (the DPP), being the relevant prosecuting body. Mr O’Connor deposed that the Commission wants to disclose to the DPP (pursuant to its duty to do so) D109’s identity; the fact that D109 attended before the Commission and gave evidence pursuant to leave granted by this Court under s 35A of the Act; that a transcript of D109’s evidence was made and a brief summary of that evidence.

14. Mr O’Connor has identified the criminal trials of two accused persons which are listed for hearing in the District Court later this year and next year respectively. Unless order 1(b) is vacated, the Commission is prohibited from making these disclosures to the DPP. For this reason, the Commission seeks that the orders be vacated to permit it to comply with its duty of disclosure to the DPP. I am informed by Mr Bhalla, who appeared on behalf of the Commission, that this is the sole reason for the Commission’s application to vacate these orders.

15. The DPP owes a duty to disclose material in its possession and information of which it is aware to an accused person. The duty of disclosure extends to documents and information which, on a sensible appraisal by the prosecution, first, can be seen to be relevant, or possibly relevant to an issue in the case; secondly, which raise, or possibly raise, a new issue, which is not presently apparent from the prosecution case; or, third, to hold out a real prospect of providing a lead on evidence which would fall into one or other of the first two categories: R v Keane [1994] 1 WLR 746, approved in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [48] and [54] (Hodgson JA), which was approved in Cornwell v R [2010] NSWCCA 59 at [210] (McClellan CJ at CL, Simpson and Johnson JJ agreeing).

16. For the purposes of this duty of disclosure, agencies such as the Commission are obliged to inform the DPP of the existence of material which must be disclosed to the defence, including material in the hands of the agency, there being no distinction in this context between what is known or in the possession of the DPP and what is known or in the possession of the agency: R v Farquharson (2009) 26 VR 410; [2009] VSCA 307 at [212]. The Statement on Disclosure in Prosecutions (March 2017) issued by the DPP states:

“5.      A precondition for prosecution disclosure is that the material is in the possession of, or the information is known by, the prosecution. For the purposes of this disclosure policy and at common law there is no distinction between the prosecuting agency and the investigative agency.  The courts generally regard the investigative agency and the prosecuting agency as ‘the prosecution’. Consequently, the CDPP [Commonwealth Director of Public Prosecutions] largely depends on the investigative agency to inform it of the existence of material which should be disclosed to the defence, whether the investigative agency holds it or is aware it is held by a third party including a Commonwealth, State or Territory agency, private entity or individual.

6.      If a matter involves investigation by more than one agency, the CDPP depends on the investigative agency which refers the brief to inform the CDPP of all disclosable material which any of the agencies involved hold or are aware of.

7.      The CDPP is available to assist and work with agencies in discharging the Prosecution’s duty of disclosure.”

17. The duty is also contained in Division 3 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) which sets out the disclosure requirements for proceedings on indictment.

18. The importance placed by the law on the duty of disclosure is evident from the consequences of its breach. A prosecutor’s failure to comply with the duty of disclosure which is exposed pre-trial can lead to an adjournment of the trial or a stay of the proceedings: Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh); [1992] HCA 57. If the accused has been convicted after trial, a failure to comply with the duty of disclosure can lead to the quashing of the conviction: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [18] and [23] (Gleeson CJ, Gummow and Callinan JJ); Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68.

19. As this application has been heard in closed court and ex parte, it is necessary for me to satisfy myself that there will be no detriment to D109 from the disclosure and that it is not necessary to hear from D109 before making the orders sought. Mr Bhalla informed me that the Commission intended that its non-publication direction pursuant to s 45 of the Act in respect of D109 remain in effect subject to a variation to permit the proposed disclosure to the DPP. Mr Bhalla has assured me, and I accept, that if there is to be disclosure of the Commission’s material beyond the DPP, D109 will have an opportunity to be heard. I am persuaded that the effect of the orders sought, if made, would be to return D109 to the category of an involuntary informant witness before the Commission. I also accept that the Commission could have sought, when it applied for the orders from McCallum J, an exception to permit it to disclose these matters to the DPP. I can discern no reason why this Court would not have made provision for such an exception, had it been sought.

Conclusion

20. If the Commission were not to disclose material information to the DPP in relation to the pending trials, there would be a risk that the trials would not be fair and that any conviction resulting from those trials could be set aside on that basis. For this reason, I am satisfied that it is necessary to vacate order 1(b) of the orders made by McCallum J to permit the Commission to comply with its duty of disclosure to the DPP, with a view to the DPP, in turn, complying with its duty of disclosure to the accused persons in the pending trials. It is also necessary to vacate the pseudonym order made by her Honour. For the reasons given above, I am satisfied that there is no relevant prejudice arising from these orders which would warrant my hearing from D109.

Orders and notations

21. For the reasons given above I make the following orders and notations:

Orders

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.

Notation

3. The Court notes:

1. 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;

2. the order sought to be vacated relates to the suppression and non-publication of the identity of the defendant;

3. 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:

1. that any evidence given by the defendant before the Commission;

2. 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

3. 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

4. These non-publication directions remain in effect.

**********

Decision last updated: 01 July 2020