SD v NSW Crime Commission - [2012] NSWSC 1642

Supreme Court

New South Wales

Case Title: SD v NSW Crime Commission

Medium Neutral Citation: [2012] NSWSC 1642

Hearing Date(s): 11 October 2012

Decision Date: 18 October 2012

Before: Adamson J

Decision:
(1) The decision of the Commission made on 15 August 2012 that the plaintiff is not entitled to refuse to answer the two questions put to him to which he objected is affirmed.
(2) The summons is otherwise dismissed.
(3) Unless an application for a different order for costs is made within seven days of the date of this order, order the plaintiff to pay the Commission's costs.

Catchwords: CRIMINAL LAW - criminal practice - examinations pursuant to the New South Wales Crime Commission Act 1985 - application for review of decision that examinee before the NSW Crime Commission is not entitled to refuse to answer questions - whether the requirement that an examinee before the NSW Crime Commission answer questions infringed his privilege against self incrimination - meaning of "reasonable excuse" within s 18 of the Act

Legislation Cited: - Royal Commissions Act 1902 (Cth)
- Crimes Act 1900
- New South Wales Crime Commission Act 1985
- Commissions of Inquiry Act 1950 (Qld)

Cases Cited: - R v CB; MP v R [2011] NSWCCA 264
- Ganin v NSW Crime Commission (1993) 32 NSWLR 423
- Z v NSW Crime Commission (No 2) [2005] NSWSC 1388
- R v Seller; R v McCarthy [2012] NSWSC 934
- Sorby v Commonwealth [1983] HCA 10; 152 CLR 281
- Hamilton v Oades [1989] HCA 21; 166 CLR 486
- Australian Crime Commission v OK [2010] FCAFC 61; 268 ALR 281

Category: Interlocutory applications

Parties: SD (Plaintiff)
NSW Crime Commission (Defendant)

Representation

- Counsel: Counsel:
D Miralis (sol) Plaintiff
I Temby QC/P English (Defendant)

- Solicitors: Solicitors:
Nyman Gibson Stewart (Plaintiff)
NSW Crime Commission (Defendant)

File Number(s): 2012/255766

Publication Restriction: None

JUDGMENT

Introduction

By summons filed on 16 August 2012 the plaintiff applies for a review by this Court, pursuant to s 19(2) of the New South Wales Crime Commission Act 1985 (the Act), of the decision by the New South Wales Commission (the Commission) that the plaintiff is not entitled to refuse to answer questions put to him during an examination hearing on 15 August 2012 The Court is empowered by s 19(4) to affirm, or set aside, the decision.

The background to the plaintiff's application

The evidence comprised a statement of agreed facts as to the background to the examination of the plaintiff by the Commission. It is not necessary to reproduce the statement in full. The following summary is sufficient to deal with the matter in issue.
Shootings occurred in Greenfield Park in January 2012. It was alleged that shots had been fired both from, and in the direction of, a Toyota Corolla vehicle.
On 9 March 2012 the police executed a search warrant at the plaintiff's residence. The warrant was granted on the basis that there were reasonable…

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 SD v NSW Crime Commission

Details

AGLC: SD v NSW Crime Commission [2012] NSWSC 1642
Case: [2012] NSWSC 1642
Decision Date: 18 October 2012

CaseChat Overview and Summary

In the case of SD v NSW Crime Commission, the dispute centred on an application for judicial review of a decision by the New South Wales Crime Commission that an individual, SD, was not entitled to refuse to answer questions put to them during an examination under the New South Wales Crime Commission Act 1985. The applicant argued that being compelled to answer questions infringed his privilege against self-incrimination and that the decision of the Commission did not take into account the requirement for a "reasonable excuse" under section 18 of the Act. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the requirement that an examinee before the NSW Crime Commission answer questions infringed their privilege against self-incrimination, and if so, whether the Commission's decision had correctly applied the "reasonable excuse" provision of section 18. The applicant submitted that the privilege against self-incrimination was a fundamental right and that the Commission's decision to compel answers was not justified. The court had to determine whether the privilege against self-incrimination was applicable in the context of examinations by the Commission and if the Commission had erred in its interpretation of "reasonable excuse."

The court held that the privilege against self-incrimination was not infringed by the requirement for an examinee to answer questions before the NSW Crime Commission. The court found that the privilege was not an absolute right and that the legislature had the power to limit it in certain circumstances. The court further held that the Commission's decision was not in error, as it had correctly interpreted the "reasonable excuse" provision, which did not extend to protecting an examinee from answering questions that were relevant to the Commission's inquiries. The court dismissed the application for review and upheld the decision of the NSW Crime Commission.

No additional orders were made by the court beyond dismissing the application for review.

Orders