R v Keskin; R v Hopperton; R v Cakmakkaya

[2019] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:	R v Keskin; R v Hopperton; R v Cakmakkaya [2019] NSWLC 4
Hearing dates:	5 December 2018
Decision date:	10 January 2019
Jurisdiction:	Criminal
Before:	Magistrate Hiatt
Decision:	See [41].
Catchwords:	CRIMINAL PROCEDURE – Application under section 45 of Crime Commission Act 2012 – Application for access to confidential transcripts of compulsory evidence given by witnesses to Crime Commission - whether evidence given before the Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – relevant considerations – where Crime Commission objects – submissions taken in the absence of accused persons and their lawyers - in camera submissions taken from lawyers for interested parties (witnesses before the Commission)
Legislation Cited:	Crimes Commission Act 2012 (NSW) ss 44, 45
Cases Cited:	R v Francis [2004] NSWCCA 85 R v Qaumi & Ors (No 11) [2016] NSWSC 252 Lee v The Queen (2014) 253 CLR 455
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (NSW) (applicant) Crime Commission of NSW (respondent) Erkan Keskin (interested party) Daniel Hopperton (interested party) Ergul Cakmakkaya (interested party) Witness “B” (interested party) Witness “E” (interested party)
Representation:	Robinson (DPP) Grady (Crime Commission of NSW) J’Demal ( Keskin) Ryan (Hopperton) Steinberg (Cakmakkaya) Sukie (witness “B”) Fahmy (witness “E”)
File Number(s):	2017/286906 (Keskin); 2018/88573 (Hopperton); 2017/301054 (Cakmakkaya)
Publication restriction:	The non-publication and suppression orders made by this Court in respect to the confidential affidavit filed and closed court submissions made on 5 December 2018 and 10 January 2019, is to continue unless otherwise varied by this Court or a superior court.

Judgment

1. Before the court is an application brought by the Director of Public Prosecutions (NSW) (the DPP) pursuant to the provisions of section 45 of the Crimes Commission Act 2012 (NSW) (the Act) seeking access to confidential transcripts of compulsory evidence given by a wide range of witnesses during the course of the NSW Crime Commission’s (the Commission) investigations under the Commission’s Urana reference concerning the alleged kidnapping in July 2016, and murder on 9 September 2016, of Mehmet Yilmaz.

2. The application seeks two specific determinations. They are access to:

1. Transcripts of compulsory evidence given to the Commission by witnesses in relation to the kidnapping of Mehmet Yilmaz in July 2016.

2. Transcripts of compulsory evidence give to the Commission by witnesses in relation to the murder of Mehmet Yilmaz on 9 September 2016.

3. The subject application is opposed in part by the Crime Commission.

Background

4. In this Court criminal prosecutions have been commenced and are in the committal stage against the accused persons Ergul Cakmakkaya, Daniel Hopperton and Erkan Keskin. Charges against each of the accused in this Court relate specifically to the allegation of the abduction of Mehmet Yilmaz in July 2016.

5. On 27 July 2018 I determined as a preliminary issue that a certificate pursuant to section 45(4) of the Act be issued certifying that it may be in the interests of justice that particular evidence given before the Crime Commission in relation to which the Commission had given a direction under subsection 45(1), be made available to the legal representatives of the Defendants and to the Prosecutor. In doing so the Court directed that such evidence be made available to the Court on a confidential basis, on or before 24 August 2018, for further consideration by the Court of that evidence under the provisions of subsection 45(5).

6. On 5 December 2018 the application was further ventilated before the court. In camera submissions were made by Mr Grady for the Crime Commission together with confidential written submissions (Exhibit 2). Those submissions were supplemented by a closed affidavit (Exhibit 1) filed by Timothy James O’Connor, Executive Director, Criminal Investigations, NSW Crime Commission.

7. Following this the DPP and legal representatives for each of the accused persons made submissions to the court. A number of legal representatives also appeared before the court to make in camera submissions on behalf of a number of witnesses who gave evidence before the Commission.

8. As undesirable as such a procedure I have adopted is, particularly given the serious nature of the charges faced by the accused in matters before this court, it is necessary to invoke such a procedure where matters of state and matters involving a high degree of confidentiality are involved. Authority for such a procedure can be found, for example, in R v Francis [2004] NSWCCA 85.

9. Before dealing further with those submissions it is necessary to acknowledge the importance of the provisions of the Act, the necessity for confidentiality to be retained in circumstances where persons are compelled to give evidence to the Commission, the immunities which flow as a consequence of that compulsion and the subject use to which such evidence may be released or subsequently used.

10. This necessarily follows as a consequence of the statutory framework and operation of section 44 and 45 of the Act which provide as follows:

44   Protection of witnesses

(1)  In this section, a reference to a person who is assisting the Commission is a reference to a person who:

(a)  has appeared, is appearing or is to appear at a hearing before the Commission to give evidence or to produce a document or other thing, or

(b)  has produced or proposes to produce a document or other thing to the Commission under this Act otherwise than at a hearing.

(2)  If it appears to the Commissioner that, because a person is assisting the Commission, the safety of the person or any other person may be prejudiced or the person or any other person may be subject to intimidation or harassment, the Commissioner may make such arrangements (including arrangements with the Minister or with members of the NSW Police Force) as are necessary:

(a)  to protect the safety of any such person, or

(b)  to protect any such person from intimidation or harassment.

(3)  …………

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.

(4)  If:

(a)  a person has been charged with an offence before a court of the State, and

(b)  the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5)  If:

(a)  the Commission makes evidence available to a court in accordance with subsection (4), and

(b)  the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

(6)  This section has effect subject to section 45A.

(6A)  It is not a contravention of a direction given under this section to publish any evidence, contents of a document or information to a registered medical practitioner or registered psychologist for the purposes of that health practitioner providing medical or psychiatric care, treatment or counselling (including but not limited to psychological counselling) to a person who has given or may be about to give evidence at a hearing.

(7)  In this section:

publish includes:

(a)  disclose to a person, and

(b)  in relation to evidence or a record of evidence—disclose any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere.

11. Given the nature of the application and the material which the Court has viewed it is necessary for the Court to deal with each of the witnesses who gave evidence by way of applying a pseudonym to each in order to protect their identity. The pseudonyms which I have prescribed to each follows in accordance with the list of transcripts provided by the commission and outlined in Mr O’Connor’s closed affidavit. The pseudonyms have been provided to the Commission for ease of reference in respect to any further proceedings, and, if the application is granted either fully or in part, to identify which evidence should be released without reference to the name of the witness.

12. The pseudonym’s ascribed commence with witness A and thereafter alphanumerically to witness S.

13. Ultimately, it is impossible, to articulate with precision the reasons for the conclusions that I have reached in a judgment that is either published or made available to the legal representatives or the accused individually. That is the essence of the application and the private and secretive nature of hearings and interrogations conducted by the Commission. Suffice to say that I have had significant regard to the principles outlined by Hamill J in R v Qaumi & Ors (No 11) [2016] NSWSC 252, in determining the application on its merits as it relates to all witnesses who gave compulsory evidence to the Commission.

The Parties Contentions

14. The DPP acknowledges that it bears the onus of establishing the merits of its application based on the interests of justice argument, but notes that it is significantly constrained in that regard because:

1. The prosecution do not know who, if anyone, gave evidence in hearings before the Commission; and

2. What the substance of any such evidence if it exists, is.

15. The Commission’s position in respect to the potential publication of the produced evidence falls into three categories:

1. Evidence the publication of which is objected to as it would offend the principles in Lee v The Queen (2014) 253 CLR 455;

2. Evidence that does not concern the principal charges before this Court, and therefore does not meet the test in section 45(5) and ought not be published; and

3. Evidence that may meet the test for publication under section 45(5) of the Act but the publication of which is objected to either in part or in full on public interest grounds.

16. The Commission consents to an order being made pursuant to section 45(5) of the Act, in respect to evidence which meets the test required by that provision, and where that evidence is published in redacted form and a pseudonym is used to protect the identity of the relevant witness.

17. The parties for each of the accused persons join with the Commission in respect to its argument under paragraph 15(1) and (2) above. Ultimately following argument the DPP concedes that position and does not press for the publication of any evidence which the Court may ultimately determine falls within either paragraphs 15(1) or (2) above.

18. The legal representative for the accused Keskin joined with the DPP in seeking publication of material evidence relative to ‘witness A’ as meeting the test outlined in paragraph 15(3) above.

19. The legal representative for witness “B” (referred to in the written submissions as witness X) joined with the Commission in opposing the publication of that witness’s evidence given before the Crime Commission.

20. The legal representative for witnesses “E” joined with the Commission in opposing the publication of that witness’s evidence given before the Crime Commission.

Consideration of the Contentions

21. In R v Qaumi & Ors (No 11) [2016] NSWSC 252, Hamill J considered the operation of section 45 of the Act. His Honour observed at [18] (in respect to the release of evidence):

“However, the provision does set a relatively high bar for an applicant who seeks release of the material. This is so for a number of reasons, not least of which is the fact that the provision will only come into effect if the Commission has made a direction under s 45(1) that the relevant evidence must not be published. Accordingly, in any case where an application is made under s 45(4) or (5), the status quo will be that the evidence is not to be released. However, the section creates a proviso to that status quo which allows the Court to inspect the relevant transcript if it “may be desirable in the interests of justice” and then, if the “interests of justice so require”, the Court may make the evidence available to the legal practitioner representing the accused and to the prosecutor. The addition of the words “and the prosecutor” came in the aftermath of the decisions in X7 v Australian Crime Commission and Lee v New South Wales Crime Commission”.

22. The expression “interests of justice” is a phrase of very wide import which allows a wide range of considerations to be taken into account, as observed by Hamill J at [23] in Quami, emphasising that the paramount consideration is that the accused person should have a fair trial.

23. His Honour further observed at [24] to [30] other relevant considerations in undertaking the balancing exercise between maintaining the status quo or exercising the discretion to release the relevant material. Those considerations are not exhaustive, but centre upon factors such as:

1. Whether the witness in question is likely to be a witness in the trial proceedings, or, if not, the importance of the evidence or information that the witness could potentially provide to either the prosecution or defence;

2. Whether the release of the material may place the witness in physical danger which cannot be mitigated;

3. The nature and extent of the evidence and its relevance to the trial proceedings; and

4. Whether a witness who gave evidence before the Commission consents to the release of their evidence.

24. In Lee v The Queen [2014] HCA 20; 253CLR 455, the High Court stated at [46]:

“It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges”.

25. Having considered the above principles and upon review of the relevant transcripts provided by the Commission as they relate to the compulsory evidence of witnesses “E”, “I”, and “J” I have formed the view that publication of the evidence of each of those witnesses would breach the High Court’s decision in Lee. Accordingly that part of the application is refused.

26. In respect to the compulsory evidence of witnesses “M”, “N”, “O” and “S” having reviewed their compulsory evidence I am not satisfied that there is any material therein which has any connection to the matters with which each of the accused are charged with in this Court. The subject material does not meet the “interests of justice” test as required in section 45(5) of the Act and accordingly the application for publication as it relates to those witnesses is refused.

27. In respect to the compulsory evidence of witness “A”, after consideration of the transcript of evidence I am satisfied that the evidence in part satisfies the test for publication under section 45(5) as it relates to the prosecution of the accused for offences in this Court. It is also noted that the witness has made a statement to NSW Police relevant to those charges and has no objection to the publication of the evidence given to the Commission. In granting the application for the publication of that evidence the Commission will be authorised to make a number of redactions and edits to the transcript for safety, relevance and privacy reasons. The publication of such evidence is also constrained in that a copy of the redacted transcript is only to be made available to the prosecutor and the legal representative of each of the accused and to no other persons, including release of the document to each of the accused individually.

28. In respect to the compulsory evidence of witness “B” having considered the transcript of evidence, whilst there is some evidence relative to the kidnapping prosecution, it is my view that such evidence is inherently weak and lacking in any degree of substance sufficient to assist any of the parties relative to the kidnapping charges in this Court. There is also other material within the transcript which has no relevance to these proceedings.

29. Additional to this I have had regard to the closed submissions made by the legal representative for the witness in which significant concerns have been expressed for the witnesses safety which are also confirmed by the Commission. Ultimately I have formed the view that the compulsory evidence as it relates to the kidnapping charges does not meet the test for publication under section 45(5) and accordingly the application for publication of it is refused.

30. In respect to the witnesses “C”, “F”, “G”, “H”, “K”, “P”, “Q”, “R”, I have reviewed the transcripts of their compulsory evidence and am satisfied that there is evidence therein which is of relevance to the matters with which the accused are charged in this Court and that such meets the test for publication pursuant to section 45(5).

31. In relation to witness “C” the witness was advised of the making of this application. The witness has advised the Commission that there is no objection to be raised in relation to the publication of the witnesses’ evidence. I note the concerns raised by the Commission in regard to the witnesses’ safety. In that regard the Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

32. In relation witness “F” the witness was advised of the making of this application. Despite that no further contact was made with the Commission nor was the witness represented in these proceedings. I note the concerns raised by the Commission in regard to the witnesses’ safety. In that regard the Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

33. In relation to witness “G” it is noted that the witness has provided a statement to NSW Police regarding the kidnapping allegations. I also note the concerns raised by the Commission in regard to the witnesses’ safety. In that regard the Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

25. In relation to witness “H” attempts were made by the Commission to contact the witness which have been unfruitful. The evidence given by the witness to the Commission is highly relevant to the kidnapping of Mehmet Yilmaz and meets the test under section 45(5). In that regard the Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

26. In respect to witness “K” the witness was served with a notice of these proceedings. The witness has expressed to the Commission concerns for the person’s safety. That position is confirmed by the Commission in Mr O’Connor’s affidavit. The evidence of the witness is significantly relevant to the kidnapping allegations and meets the test in section 45(5). The Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

27. In relation to witness “P” the Commission has been unable to contact this witness to advise of the application before this Court. After considering the transcript of the witnesses’ evidence I am satisfied that it is relevant to the kidnapping allegations and meets the test in section 45(5). It is to be noted also that the witness has provided a statement to NSW Police regarding the kidnapping allegations. The Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

28. In relation to witness “Q” I am satisfied on a review of the transcript that there is some evidence which is relevant to the kidnapping allegations which after all other considerations meets the test in section 45(5). The Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

29. In relation to witness “R” I am satisfied on a review of the transcript that there is some evidence which is relevant to the kidnapping allegations which after all other considerations meets the test in section 45(5). The Commission is authorised to make the necessary redactions to the transcripts of this witnesses’ evidence for the purposes of relevance, safety and privacy concerns. Copies of the redacted transcripts relating only to evidence which touches upon the kidnapping charges is to be made available to the prosecutor and the legal representative for each accused and to no other persons.

30. In respect to the evidence of witness “L” after consideration of the witnesses’ compulsory evidence whilst there is some minor relevance to the kidnapping allegations I am not satisfied that it is significantly probative to meet the test in section 45(5) and accordingly publication of it is refused.

31. In respect to the compulsory evidence given by witness “D” after consideration of the witnesses’ compulsory evidence I am not satisfied that it meets the test in section 45(5) in establishing evidence connected to the charges with which the accused in this Court face. Even if I be wrong in that regard I am satisfied that the publication of the witnesses’ compulsory evidence would bring about significant risk to the witnesses’ safety and that of family members which could not be mitigated even by use of redaction of some of the evidence and or the use of a pseudonym. The application for publication of that evidence is refused.

Orders

41. For the reasons set out above, I make the following orders:

1. Pursuant to section 45(5) of the Crime Commission Act 2012, access to or publication of the evidence given before the Crime Commission by witnesses “B”,“D”, “E”, “I”, “J”, “L”, “M”, “N”, “O”, and “S” is refused.

2. Pursuant to section 45(5) of the Crime Commission Act 2012, access to the evidence given before the Crime Commission by:

1. Witness “A”

2. Witness “C”

3. Witness “F”

4. Witness “G”

5. Witness “H”

6. Witness “K”

7. Witness “P”

8. Witness “Q”

9. Witness “R”

is granted to the Prosecutor who has conduct for the criminal prosecutions against the accused person’s Keskin, Cakmakkaya and Hopperton and to the principal legal representative for each of those accused in accordance with the further conditions below.

3. The Crime Commission is authorised to make the necessary redactions to the transcripts for relevance, safety and privacy concerns including the use of pseudonym’s ascribed by the Court to give conformity to the reasons outlined in this decision.

4. A copy of each of the redacted transcripts of evidence referred to in order 2 above are to be provided to the Court on a confidential basis on or before 14 February 2019.

5. Once the Court is satisfied that the redacted transcripts accord with the matters raised in closed Court access is to be made available to the principal legal representatives and prosecutor referred to in order 2 at the Crime Commission Office at 453-463 Kent Street, Sydney by appointment.

6. The redacted transcripts are not to be removed from the Crime Commission’s premises.

7. No copy, photo or image of the redacted transcript is to be made other than by officers of the Crime Commission or the Crime Commission’s legal representatives.

8. The legal representatives and prosecutor who have been granted access to the material are to retain in their possession all notes they make of the content of the redacted transcripts.

9. The Court notes:

1. That on 27 July 2018 this Court gave the Crime Commission a certificate pursuant to section 45(4) of the Crime Commission Act2012.

2. Pursuant to that certificate the Crime Commission made available to this Court certain evidence on a confidential basis.

3. Pursuant to section 45(5) of the Crime Commission Act2012 the Court is satisfied that:

1. The material produced is subject to a non-publication order made by the Crime Commission pursuant to section 45(1) of the Crime Commission Act 2012; and

2. the interests of justice require that the redacted transcripts as outlined in this judgment be made available to the parties as specified in order 2 above.

10. The non-publication and suppression orders made by this Court in respect to the confidential affidavit filed and closed court submissions made on 5 December 2018 and 10 January 2019, is to continue unless otherwise varied by this Court or a superior court.

Magistrate Hiatt

Penrith Local Court

10 January 2019

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Decision last updated: 22 August 2019