NSW Crime Commission v D163 - [2020] NSWSC 812

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v D163 [2020] NSWSC 812
Hearing dates: 23 June 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   The Court vacates orders 1 and 2(b) of the orders made on 15 September 2015 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must not be published except in such manner and to such persons as the Commission specifies; and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:
R v Keane [1994] 1 WLR 746
R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
Cornwell v R [2010] NSWCCA 59
R v Farquharson (2009) 26 VR 410; [2009] VSCA 307
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

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)
D163 (Defendant)
Representation:
Counsel:
R Bhalla (Plaintiff)
No appearance for the Defendant (application heard ex parte)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2015/270682
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 (Bellew J) on 15 September 2015 in respect of the defendant, D163. D163 is presently subject to a non-publication direction in respect of his…

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 812
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the matter of the New South Wales Crime Commission against D163, the case was heard in the Supreme Court of New South Wales. The dispute centred around the Crime Commission’s application for variation of non-disclosure orders previously made in relation to sensitive information obtained during an investigation. The information, which implicated several investigative agencies, was critical to the ongoing investigation and subsequent prosecution of criminal activities. The applicant argued that the variation was necessary to allow the disclosure of certain information to the respondents to ensure a fair trial.

The legal issues before the court were the scope of the non-disclosure orders and the extent to which investigative agencies were required to disclose information to the respondents. Specifically, the court had to determine whether the investigative agencies had a duty to disclose information that would assist in the preparation of the respondents' defence, and whether this duty outweighed the need to protect sensitive information obtained during the investigation. The court also needed to consider the balance between the rights of the respondents to a fair trial and the public interest in maintaining the confidentiality of sensitive investigative information.

The court, in its reasoning, held that the investigative agencies had a duty to disclose information that was necessary for the respondents to prepare their defence. The court found that the duty of disclosure was not absolute but rather balanced against the need to protect sensitive information. The court emphasised the importance of ensuring a fair trial and recognised that investigative agencies had a duty to provide information that was relevant and necessary for the respondents to effectively challenge the prosecution's case. The court concluded that the original non-disclosure orders should be varied to allow the disclosure of certain information to the respondents, while still protecting other sensitive information. The court made orders varying the non-disclosure orders to facilitate the disclosure of information necessary for the respondents to prepare their defence while maintaining the confidentiality of other sensitive information.

Orders