R v Spinks; NSW Crime Commission v Spinks (No 2)

[2020] NSWSC 1844

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Spinks; NSW Crime Commission v Spinks (No 2) [2020] NSWSC 1844

Hearing dates:

3 December 2020

Date of orders:

3 December 2020

Decision date:

03 December 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to section 45(5) of the Crime Commission Act 2012 (NSW) the transcripts of Witness A’s evidence before the New South Wales Crime Commission (“NSWCC”) on 21 March 2019 and of Witness B’s evidence before the NSWCC on 1 August 2019, be provided to the Prosecutor and his solicitors and to the legal practitioners representing Mr Spinks. This material is to be released subject to the redactions made to it by the Crime Commission for reasons of confidentiality and public interest immunity.

Catchwords:

CRIMINAL LAW - murder - release of confidential evidence - reluctant witnesses - incongruous bowing - whether evidence given to Crime Commission should be released to the parties - where witnesses advised the evidence would not be published - eye witness to alleged murder - where witness objects to release of material - where witness failed to provide statement to police - policy reasons against release - stringent legal test - factors relevant to exercise of power

Legislation Cited:

Crime Commission Act 2012 (NSW), s 45(5)

Cases Cited:

R v Hawat (No 1) [2019] NSWSC 1583

R v Jaghbir (No 2) [2020] NSWSC 955

R v McCloskey (No 1) [2020] NSWSC 771

R v Sparos [2018] NSWSC 568

R v Spinks; NSW Crime Commission v Spinks [2020] NSWSC 1708

Category:

Procedural rulings

Parties:

Regina
Matthew Henry Spinks
NSW Crime Commission

Representation:

Counsel:
D Scully (Crown)
J Manuell SC (Spinks)
R Bhalla (Crime Commission)

Solicitors:
Solicitor for the NSW DPP (Crown)
Legal Aid (Spinks)
Crown Solicitor’s Office (Crime Commission)

File Number(s):

2018/215162

Publication restriction:

No publication until the conclusion of the trial.

Ex TEMPORE Judgment (REVISED)

1. On 9 October 2020, I made an order under s 45(4) of the Crime Commission Act 2012 (NSW) requiring production of two transcripts of evidence given before the NSW Crime Commission: see R v Spinks; NSW Crime Commission v Spinks [2020] NSWSC 1708. One related to a witness who will be referred to as Witness A, and the other related to a witness who will be referred to as Witness B. It is anticipated that both witnesses will give evidence in the upcoming murder trial of Matthew Spinks. [1] In accordance with that order, the transcripts were produced to the Court for the purpose of me assessing whether orders pursuant to s 45(5) of the Crime Commission Act should also be made.

   1. As it turned out, Witness B was not called as a witness at the trial. Witness A did give evidence and presented as a most reluctant witness. Initially, they declined to take an oath or affirmation and their evidence was given under sufferance. On more than one occasion the witness indicated they would give no further evidence and on one occasion walked out of court (although, incongruously, they bowed as they left). The Court’s contempt powers seemed to be the critical motivating factor behind the witness responding to questions at all.

2. The relevant subs (5) is in the following terms:

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.

3. The test provided for by this provision is a relatively stringent one. There are sound policy reasons for this, including the protection of evidence given, and witnesses who appear, before the NSW Crime Commission. Such evidence is often given under compulsion, and generally given by witnesses who are told that that there will be no publication of their evidence.

4. In the present case, both witnesses in question were unenthusiastic, to say the least, and unwilling to give evidence before the Commission. They only gave evidence when they were compelled to do so by the threat of prosecution under the Crime Commission Act.

5. Both Witness A and Witness B were told by officers of the Crime Commission that there would be a non-publication order over their evidence. Both provided evidence under compulsion and on the understanding that their evidence would not be published or made available to the primary parties in this matter.

6. On 30 October 2020, having perused the evidence of each of the witnesses, I came to a preliminary view that the evidence should be disclosed subject to the witnesses having the opportunity to be heard on the issue. The Crime Commission took a restrained or perhaps neutral approach, but in essence, did not oppose my making of an order under s 45(5) of the Crime Commission Act releasing the material to the parties.

7. Having indicated my preliminary view, the matter was adjourned until today, 3 December 2020, to give the Crime Commission the opportunity to advise the witnesses of that preliminary view, and to give them an opportunity to be heard if they chose to appear or be represented. Neither of the witnesses has appeared today, but affidavits, one open and one closed, have been provided to the Court by the Crime Commission. These affidavits set out attempts made by the Crime Commission to contact the witnesses, and also, what they said in response to the advice that I was minded to release the material to the prosecution and to the legal representatives of the accused.

8. The open affidavit, insofar as it relates to Witness B, indicates that they did not object to the release of the transcript. However, the witness gave that indication on an obvious misunderstanding of the situation because they said that they believed that Mr Spinks' criminal case had concluded. Obviously it has not. Mr Spinks’ trial for the murder of Nathan Costello is due to commence in February next year.

9. Witness B was advised of their misapprehension, but it is not particularly clear whether they altered their approach as a result. Equally, there appears at least to be no objection by them to the release of the material. Further attempts to contact them have been unsuccessful. Witness B was advised of their right to make submissions on the matter but it would seem that they have elected not to do so.

10. Having formed the preliminary view that Witness B’s evidence should be released and bearing in mind the fact that they have not made any submissions to the contrary, my preliminary view remains. I propose to make an order releasing the transcript of Witness B’s evidence of 1 August 2019 to the accused's legal representatives, and to the Prosecutor and his solicitors.

11. The situation with Witness A is more difficult. The open affidavit indicates no more than Witness A’s simple objection to the transcript of their evidence being released to the parties. The confidential affidavit sets out in more detail the reason for that. Part of that confidential affidavit has now (in effect) been made open so that the parties were able to be made aware of what we are dealing with to some extent.

12. When Witness A was advised of their right to make representations on the issue, and that I was considering releasing the transcript, the affidavit records that they stated with a raised voice:

"I do fucking object. It was supposed to be confidential."

13. Witness A went on to say other things and it would be obvious to anyone experienced in the criminal law as to their reasons for the objection. Those matters are set out in paragraph 4 of the confidential affidavit, and even more stridently and troublingly perhaps in paragraph 6.

14. Witness A has been advised that those matters would be brought to my attention before I did anything more in relation to their transcript. I have taken into account the concerns raised, and I have also taken into account the fact that Witness A objects.

15. I have asked the Crime Commission's representatives whether or not there is any information available to them that would support the concerns Witness A raises in any particular respect. I am told that there is no information or evidence currently to hand that suggests those concerns go beyond what I might say would be normal for a person in Witness A's position.

16. The matters that are relevant to the question posed by s 45(5) of the Crime Commission Act have been considered in a number of cases, and a number of them are pertinent here: see, for example, R v Jaghbir (No 2) [2020] NSWSC 955; R v Hawat (No 1) [2019] NSWSC 1583; R v McCloskey (No 1) [2020] NSWSC 771; R v Sparos [2018] NSWSC 568.

17. Militating against disclosure is the fact that Witness A was, to put it mildly, a plainly reluctant witness when they gave evidence. The reality is, they did not want to be there. Witness A was compelled to be there and only gave evidence essentially under the threat of prosecution if they failed to do so.

18. Second, Witness A was told at the time that there would be a non-publication order over their evidence, and indeed, a non-publication order was made, so that their objection and statement that "it was supposed to be confidential" is well-founded. The material comes from a witness who is potentially important. The fact that the case involves an allegation of homicide, the potential usefulness to both parties and the potential importance of the evidence are factors weighing in favour of production of the transcript of Witness A’s evidence to the parties.

19. Witness A generally did not cooperate with the police investigation, and so if they were called to give evidence in the absence of these transcripts, both parties would be in a position of not knowing what Witness A has said before about these incidents. I anticipate Witness A will not be a particularly cooperative witness when they give evidence, but even so, the transcript does allow the parties to have some understanding of what they might say if they do give evidence.

20. While Witness A has raised concerns of a serious nature, there is no evidence that suggests that those concerns go beyond the legitimate concerns that would be held by anybody in their position. That is, the position of somebody who knows that someone else has been shot and killed; who also knows that someone has been charged with that offence; and who knows that they might be seen to be cooperative with a police investigation or a prosecution. That position might put them in some jeopardy.

21. That is a matter to which I have given serious consideration in coming to a conclusion. However, the seriousness of the offences, the precarious position in which Mr Spinks finds himself (that is, facing a life sentence), the importance of Witness A's evidence to both the prosecution and the defence because of their proximity to the shooting when it occurred, and their knowledge of what happened, is such that I am ultimately satisfied that it is in the interests of justice for the Court to make available the evidence of Witness A on a limited basis. The evidence of Witness A is to be made available only to the legal practitioners representing Mr Spinks and also to the Prosecutor and his solicitors.

22. Accordingly, I make an order that, pursuant to section 45(5) of the Crime Commission Act 2012 (NSW), the transcripts of Witness A’s evidence before the New South Wales Crime Commission (“NSWCC”) on 21 March 2019 and of Witness B’s evidence before the NSWCC on 1 August 2019, be provided to the Prosecutor and his solicitors and to the legal practitioners representing Mr Spinks. This material is to be released subject to the redactions made to it by the Crime Commission for reasons of confidentiality and public interest immunity.

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Endnote

Amendments

22 February 2021 - No longer restricted. Trial concluded.

26 February 2021 - Appropriate redactions made.

26 February 2021 - Appropriate redactions made.

Decision last updated: 26 February 2021