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

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).
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.
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).
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…

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: [2015] NSWSC 1842
Decision Date: 03 December 2015

CaseChat Overview and Summary

The case involved the NSW Crime Commission seeking leave to take evidence from a person, referred to as D150, under section 35A of the Crime Commission Act 2012 (NSW). The dispute centred on whether D150 should be compelled to provide testimony, potentially impacting the ongoing criminal proceedings against other defendants. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was to determine whether the potential prejudice to the defendants' trial was outweighed by the public interest in allowing the Crime Commission to fully investigate and gather evidence in a significant criminal matter. The court had to balance the rights of the accused against the broader societal interest in exposing and combating organised crime.

The court found that the potential prejudice to the defendants' trial was indeed outweighed by the significant public interest in the full investigation by the Crime Commission. The court acknowledged the critical role of the Commission in investigating organised crime and its importance to public safety. It concluded that the broader societal benefits of enabling the Commission to gather and present evidence justified any potential prejudice to the defendants.

As a result of this decision, the court granted the application for leave to take evidence from D150 under section 35A of the Act. This ruling permits the Crime Commission to compel D150 to provide testimony, ensuring that the investigation into the criminal activities can proceed without hindrance.

Orders