NSW Crime Commission v D150

[2015] NSWSC 1842

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Crime Commission v D150 [2015] NSWSC 1842
Hearing dates:	3 December 2015
Decision date:	03 December 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph 28
Catchwords:	CRIMINAL LAW – application for leave of Court to take evidence from accused person under s 35A Crime Commission Act 2012 (NSW) – potential prejudice to trial of defendants outweighed by public interest in full investigation by Commission
Legislation Cited:	Crime Commission Act (NSW), ss 3, 10, 35A, 39, 39A, 45, 49, 50, 51, 54 Crime Commission Legislation Amendment Act 2014 (NSW). Criminal Assets Recovery Act 1990 (NSW), s 31D Criminal Code (Cth), ss 11.1, 11.2A, 307.5 Court Suppression and Non-Publication Act 2010 (NSW), s 7 New South Wales Crime Commission Act 1985 (NSW), s 13
Cases Cited:	Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196 Lee v The Queen [2014] HCA 20; 88 ALJR 656 X7 v Australian Crime Commission [2013] HCA 20; 248 CLR 92
Texts Cited:	Second Reading Speech to the Crime Commission Legislation Amendment Bill 2014 (NSW) (Legislative Assembly, 11 November 2014, page 2426)
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) D150 (First Defendant) D151 (Second Defendant) D152 (Third Defendant) D153 (Fourth Defendant) D154 (Fifth Defendant) D155 (Sixth Defendant)
Representation:	Counsel: G Drennan (Solicitor) (Plaintiff)     Solicitors:
File Number(s):	2015/357113

Judgment

Introduction

1. By summons filed in Court on 3 December 2015, the New South Wales Crime Commission (the Commission) seeks an ex parte order pursuant to s 35A(5) of the Crime Commission Act 2012 (NSW) (the Act) for leave to question each of the defendants and have them produce certain documents or things relating to an alleged joint attempt to possess commercial quantities of two types of unlawfully imported border controlled drugs. The possession of such drugs is an offence contrary to s 307.5(1), with s 11.1(1) and s 11.2A(1), of the Criminal Code Act 1995 (Cth), Sch 1 (the Criminal Code).

2. The allegation that the Commission proposes to investigate is that each of the defendants is part of a syndicate involved in a particular importation of large amounts of two prohibited drugs with a substantial combined street value.

3. The Commission also seeks ancillary orders, including a non-disclosure and non-publication order pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW).

4. The application was heard in closed court on 3 December 2015. Ms Drennan appeared for the Commission. I am satisfied that it was appropriate to close the court, having regard to the potential risk to the defendants if their identity becomes known. Each has been selected by the Commission to be examined at a compulsory examination. Although none of the defendants has a choice about the matter, their compliance with any order I might make granting leave to the Commission to examine them might render them subject to reprisals from those associated with the alleged syndicate if their identity becomes known.

Relevant legislation

The Crime Commission Act 2012 (NSW)

5. Section 3 of the Act identifies as the object of the Act: “to reduce the incidence of organised and other serious crime”. Section 10(1) provides that the principal functions of the Commission include:

“(g) with the approval of the Management Committee, to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate.”

6. Section 35A was inserted into the Act by the Crime Commission Legislation Amendment Act 2014 (NSW), which commenced on the day of Royal assent, 28 November 2014. Section 35A provides:

“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.

(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.”

7. Sections 39 and 39A of the Act make provision for the (direct) use and derivative use that can be made of answers given or documents or things produced by witnesses as a result of the Commission’s compulsory powers. As s 35A(3) prohibits the use of evidence obtained from persons who have been examined or required to produce documents under s 35A, it is necessary for present purposes to set out only the following extracts of ss 39 and 39A.

“39 Privilege concerning answers and documents

(1) A witness summoned to attend or appearing before the Commission at a hearing is not (except as provided by section 40) excused from answering any question or producing any document or thing on the ground that the answer or production may incriminate or tend to incriminate the witness, or on any other ground of privilege, or on the ground of a duty of secrecy or other restriction on disclosure, or on any other ground.

. . .

39A Derivative evidence

(1) Any further information, evidence, document or thing (the derivative evidence) obtained as a result of:

(a) the questioning under section 24 of a witness at a hearing before the Commission, or

(b) the production under section 24 or 29 of a document or thing,

(the original evidence) is not inadmissible in any civil or criminal proceeding or in any disciplinary proceeding.

(2) Without limiting subsection (1), the derivative evidence is not inadmissible on the ground:

(a) that the original evidence had to be given or produced, or

(b) that the original evidence might incriminate the witness, or

(c) that the witness was questioned (or required to produce the document or thing) in relation to the subject matter of the offence for which the witness was charged before the charge was laid, or

(d) that the original evidence was obtained at a hearing when the witness was questioned (or required to produce the document or thing) pursuant to leave granted for the purposes of section 35A in relation to a particular offence and the original evidence related to another offence, being an offence with which the witness was not yet charged.

(3) The derivative evidence is not admissible against the witness where the witness was questioned (or required to produce the document or thing) pursuant to leave granted for the purposes of section 35A in relation to the subject matter of the offence for which the witness was charged.

(4) However, an exception under subsection (3) does not apply if the derivative evidence could have been obtained (or its significance understood) without the testimony of the witness.

(5) Nothing in this section affects the operation of section 39.”

8. Section 45 of the Act provides:

“45 Publication or disclosure of evidence

(1) The Commission may direct that:

(a) any evidence given before it, or

(b) the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant, or

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2) The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(3) A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.”

9. The Management Committee of the Commission is constituted by s 49(1) of the Act. Its members include the Commissioner of Police: s 50(1). Section 51(1) provides that its principal functions include:

“(a) to refer (by a written notice in accordance with section 54 (1)) matters relating to relevant criminal activities to the Commission for investigation and . . .”

10. Section 54 of the Act relevantly provides:

“54 Notices referring matters for investigation

(1) The notice referring a matter relating to a relevant criminal activity, serious crime concern or criminal activity of a criminal group to the Commission for investigation or renewing such a reference:

. . .

(b) must describe the general nature of the circumstances or allegations constituting the relevant criminal activity, serious crime concern or criminal activity of the criminal group, and

(c) must set out the general purpose of the investigation.”

The evidence

11. The Commission relies on an affidavit of Robert Tuckerman sworn 1 December 2015. The deponent is one of the Commission’s officers and is employed as an Assistant Director of Criminal Investigations. He manages the plaintiff’s Organised Crime Directorate and supervises the managers and analysts working on the Commission’s criminal and financial investigations. He is familiar with the relevant joint New South Wales and Commonwealth investigations. The facts set out below derive from Mr Tuckerman’s affidavit.

Background facts

12. On 18 February 2014 the Management Committee, pursuant to s 10(1)(g) of the Act gave approval to the Commission to work in co-operation with the Organised Crime Squad (OCS), which forms part of the New South Wales Police Force.

13. On 21 July 2015 the Management Committee, by notice, referred matters to the Commission for investigation pursuant to s 51(1)(a). The notice set out the nature and purpose of the investigation as follows:

“The general nature of the circumstances or allegations constituting relevant criminal activity within the meaning of the Act (in particular paragraph 54 (1)(b) and subsection 4 (1)) to which Matters for investigation relate is that the Commission has information indicating that certain persons may have engaged in, may be engaging in, and may be about to engage in illegal drug trafficking involving the distribution of . . . prohibited drugs contrary to ss 24 to 29 of the Drug Misuse and Trafficking Act 1985 (:the IDMTI Act”) and related money laundering activities.

The general purpose of the investigation is:

(a)   to investigate the matters; and

(b)   to obtain evidence for use in criminal prosecutions of, and in proceedings under the Criminal Assets Recovery Act 1990 against, any persons found by the investigation to have engaged in criminal activity.”

14. Each of the defendants was charged with two offences of possessing prohibited drugs. The circumstance that two offences were charged arises from the fact that two types of drug were involved, although the Crown case is that the possession was part of the same criminal operation contrary to s 307.5(1) with s 11.1(1) and s 11.2A(1) of the Criminal Code. These charges were laid by the Australian Federal Police (AFP) as a result of its own investigation, in which, according to Mr Tuckerman’s affidavit, the Commission had “no practical involvement”.

15. These charges are presently listed for mention in the Local Court before the end of court term. Ms Drennan informed me that the Commission planned, if leave was granted under s 35A, to conduct examinations within a fortnight.

Consideration

The context and legislative purpose of s 35A

16. In X7 v Australian Crime Commission [2013] HCA 20; 248 CLR 92 (X7), the High Court held that where a person has been charged with an offence, but not yet tried, he or she could not be compulsorily examined about the subject matter of the pending charge. The High Court held that the applicable legislation was not sufficiently clear to authorise such a fundamental departure from the accusatorial nature of the criminal justice system.

17. In Lee v NSW Crime Commission [2013] HCA 39; 251 CLR 196, the High Court, by majority, held that s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) empowered the Court to make an order for the examination of a person charged with criminal offences about conduct that was the subject of criminal charges against that person.

18. In Lee v The Queen [2014] HCA 20; 88 ALJR 656, the High Court considered s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) (the 1985 Act). The 1985 Act has been replaced by the Act. However s 45 of the Act is in similar terms to the relevant provision under the 1985 Act, s 13(9).

19. Section 35A of the Act, and related amendments, were introduced in 2014 in response to the decisions of the High Court in X7 and Lee v The Queen, which are referred to in the Second Reading Speech (which does not, however, refer to Lee v NSW Crime Commission). The purpose of s 35A was identified in the following terms in the Second Reading Speech (Legislative Assembly, 11 November 2014, page 2426ff):

“Situations where the commission compulsorily examines a person charged with an offence are infrequent, but when they arise they often involve homicide investigations or persons who are part of an organised criminal group—but not the principal—and it is necessary to establish the identity of other offenders and the circumstances surrounding the offence. There is thus a significant public interest in the New South Wales Crime Commission retaining full use of its powers of compulsory examination post-charge.”

Decisions considering s 35A

20. As at the time these reasons were published, the decision of McCallum J in New South Wales Crime Commission v D109 [2015] NSWSC 1244 was the only published decision, although two other applications had been made by the Commission, which resulted in orders being made by this Court under s 35A. I am indebted to her Honour for her careful analysis of the cases that preceded the insertion of s 35A and associated amendments into the Act.

Whether an order under s 35A ought be granted in the present case

21. Section 35A expressly empowers the Court to grant leave to the Commission to summon a person who is the subject of a current charge for an offence and take evidence from that person in relation to the subject matter of the offence. Parliament has thereby expressly evinced its intention to authorise a fundamental departure from the accusatorial nature of the criminal justice system, as it was described in X7.

22. Section 35A entitles the Commission to apply to this Court, as it has done in the present case, ex parte.

23. The statutory requirements for the Commission’s application to this Court have been met. Mr Tuckerman is an officer of the Commission: s 35A. His affidavit meets the requirements of s 35A(4)(a) and (b) in that he states that he believes that the questioning of the defendants and the requirements made of them is in the public interest notwithstanding that such questioning or requirements may relate to the subject matter of the offences with which each defendant is charged. He also deposes that the questioning and the requirements are necessary to investigate the matter referred to in the notice fully.

24. In his affidavit, Mr Tuckerman also:

1. sets out some of the information presently known about the importation referred to above ([19]-[36] of his affidavit);

2. the specific involvement of the defendants in the criminal activity of the syndicate ([37]-[57] of his affidavit);

3. investigations undertaken which show further involvement by the defendants ([58]-[78] of his affidavit); and

4. what the Commission aims to achieve by questioning the defendants in compulsory examination if leave is granted under s 35A ([79]-[88] of his affidavit).

25. Mr Tuckerman deposed that although, if leave is granted, the defendants will be questioned about matters which touch and concern their own alleged criminal conduct and the offences with which they have been charged, the defendants’ criminal conduct is “of little interest to the Commission’s investigation, and this information is not the goal of the hearing”.

26. I am satisfied, on the basis of the material before me, that any prejudicial effect that is likely to arise to the trial of each defendant is outweighed by the public interest in using the Commission’s powers to ensure that the matter referred to in the notice is fully investigated. It is in the public interest that those who bear greater responsibility for the criminal conduct involved in the importation of distribution of prohibited drugs be held to account for their conduct. It is not in the public interest that those who play smaller roles and who are exposed to greater risk, for less reward, are held criminally responsible while the true progenitors and profiteers of the criminal enterprise escape detection with the consequence that they are not brought to trial.

27. Having regard to the requirements of s 35A(7), (8) and the availability, by reason of s 42(2A), of legal and financial assistance to persons in respect of whom a grant of leave under s 35A has been made, I do not consider it necessary to impose any further conditions on the grant of leave.

Orders

28. For the foregoing reasons, I made orders as follows in respect of each of the six named defendants at the conclusion of the ex parte hearing in closed court on 3 December 2015:

1. In respect of each named defendant:

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

1. the summons;

2. the name of the Defendant;

3. the evidence filed in support of the summons; and

4. any transcript of the hearing of this matter,

subject to the requirements of s 35A(8) of the Crime Commission Act 2012 (NSW) and except for:

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

5. the proper processes of the NSW Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence filed in support of the summons.

3. Order (1) is to have effect throughout the Commonwealth.

4. Leave is granted pursuant to s 35A of the Crime Commission Act 2012 to the Plaintiff, its officers and legal practitioners engaged or employed by it, to question and make requirements of the defendant during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with, namely two offences contrary to s 307.5(1), with ss 11.1(1), and 11.2(1) of the Criminal Code 1995 (Cth).

5. Order that:

1. the first-named defendant be referred to by the pseudonym D150.

2. the second-named defendant be referred to by the pseudonym D151.

3. the third-named defendant be referred to by the pseudonym D152.

4. the fourth-named defendant be referred to by the pseudonym D153.

5. the fifth-named defendant be referred to by the pseudonym D154.

6. the sixth-named defendant be referred to by the pseudonym D155.

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Decision last updated: 09 December 2015