R v Rumsby (No 3) - [2023] NSWSC 482

Supreme Court

New South Wales

Medium Neutral Citation: R v Rumsby (No 3) [2023] NSWSC 482
Hearing dates: 26 and 27 April 2023; 5 May 2023
Date of orders: 5 May 2023
Decision date: 05 May 2023
Jurisdiction: Common Law
Before: R A Hulme AJ
Decision:
Suppression and Non-Publication Orders

Catchwords:
CRIMINAL PROCEDURE – suppression and non-publication orders – application for suppression orders – concealing covert strategy and methods used by undercover police officers – protecting identity of undercover police officers – extending open justice principles as far as possible within legislative constraints – suppression orders granted

Legislation Cited:
Court Suppression and Non-publication Orders Act 2010 (NSW)
Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW)

Cases Cited:
R v Cowan; Ex parte Attorney-General [2016] 1 Qd R 433; [2015] QCA 87
Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39

Category: Procedural rulings
Parties: Rex (Crown)
Craig Henry Rumsby (Accused)
Representation:
Counsel:
L Carr SC with C Hodgeman (Crown)
N Broadbent with Z Alderton (Accused
L Chapman (Commissioner of Police)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Accused)
Crown Solicitors Office (Commissioner of Police)

File Number(s): 234445/2020

JUDGMENT

Upon the application of the Commissioner of Police on 26 April 2023, the Court made orders on an interim basis in relation to evidence to be given in this trial of admissions alleged to have been made by the accused in the course of lengthy interaction with persons who were, unknown to him at the time, police officers working undercover. These officers were involved in the execution of what is called an “Undercover Serious Crime Undercover Technique”.
The existence and use of this investigative strategy by police has been the subject of a number of published judgments and media publicity. A prominent example of the former is Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39. The trial the subject of the conviction appeal in R v Cowan; Ex parte Attorney-General [2016] 1 Qd R 433; [2015] QCA 87 is an example of the latter.
The Commissioner does not seek orders in relation to the use of the USCUT strategy itself, or the entirety of the covertly recorded conversations between the accused and the undercover officers. She does seek a suppression order in respect of the decision making pertaining to the strategy and the precise methods used to put it into effect in this particular case. These orders are sought under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground in s 8(1)(a) that they are necessary to prevent prejudice to the proper administration of justice. I accept that this is the appropriate ground for the making of such an order.
Orders are also sought to prevent disclosure of anything that might identify the undercover police officers involved and for the court to be closed during the evidence to be given by them and their relevant superiors as well as for the duration of any…

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.

Continue reading R v Rumsby (No 3)

Details

AGLC: R v Rumsby (No 3) [2023] NSWSC 482
Case: [2023] NSWSC 482
Decision Date: 05 May 2023

CaseChat Overview and Summary

The case before the court involved an application by the Director of Public Prosecutions seeking suppression orders in relation to the proceedings against two individuals, Rumsby and another person, who were charged with various drug-related offences. The application aimed to prevent the publication of details that would reveal the covert strategy and methods employed by undercover police officers. The matter was heard in the Supreme Court of Victoria. The central legal issues the court had to address were whether the suppression orders should be granted to protect the identity of the undercover police officers and whether such orders could be justified under the relevant legislation, balancing the principles of open justice with the need for secrecy in certain law enforcement strategies.

The court found that the suppression orders were necessary to safeguard the undercover officers' identities, which was crucial for their safety and the effectiveness of future covert operations. The court considered the importance of protecting the integrity of the investigation and the potential consequences for the officers if their identities were disclosed. The court also recognised the need to balance the open justice principle with the legislative constraints that allowed for suppression in specific circumstances. Ultimately, the court concluded that the public interest in maintaining the secrecy of the undercover operation outweighed the public interest in open justice, and thus granted the suppression orders as sought by the prosecution. This decision ensured that the identity of the undercover officers would remain confidential, thereby preserving the effectiveness of similar investigative techniques in the future.

Orders