NSW Crime Commission v D181 - [2020] NSWSC 813

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v D181 [2020] NSWSC 813
Hearing dates: 23 June 2020
Decision date: 26 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   The Court vacates order 1(b) made on 27 November 2015 and order 3 made on 3 December 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must not be published except in such manner and to such persons as the Commission specifies; and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:
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 D181 [2015] NSWSC 1836
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)
D181 (Defendant)
Representation:
Counsel:
R Bhalla (Plaintiff)
No appearance for the Defendant (application heard ex parte)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2015/349804
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 (Hall J) on 27 November 2015 and 3 December 2015…

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 813
Decision Date: 26 June 2020

CaseChat Overview and Summary

The case of NSW Crime Commission v D181 involved a dispute concerning the variation of non-disclosure orders made by the NSW Crime Commission. The case was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the Crime Commission could lawfully vary non-disclosure orders, and if so, under what conditions, while also considering the implications for the investigative agencies' duty of disclosure. The dispute arose from the Crime Commission's decision to alter non-disclosure orders that had been previously issued, which affected the evidence that could be shared with the investigative agencies.

The court was required to determine the legal framework governing the variation of non-disclosure orders and whether such variations were permissible without undermining the investigative agencies' duty to disclose relevant information. The central legal issue was the balance between maintaining the integrity of sensitive information and ensuring that investigative agencies have the necessary information to perform their duties effectively. The court had to interpret the relevant statutory provisions and case law to resolve this tension.

In delivering the judgment, the court found that the Crime Commission had the authority to vary non-disclosure orders under certain circumstances, provided that such variations did not prejudice the investigative agencies' duty of disclosure. The court emphasised the importance of ensuring that any variation of non-disclosure orders was in the public interest and did not compromise the effectiveness of investigations. The decision underscored the need for careful consideration and justification when altering non-disclosure orders, balancing the interests of both the Crime Commission and the investigative agencies. The final outcome was that the variation of the non-disclosure orders was upheld, subject to specific conditions that safeguarded the investigative agencies' disclosure obligations.

Orders