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Supreme Court 16 February 2015

R v Simmons; R v Moore

[2015] NSWSC 73

Public order & justice offences
CRIMMINAL LAW ASSUMED IDENTITIES UNDERCOVER POLICE OFFICERS SUPPRESSION ORDERS MADE ANCILLARY ORDERS MADE CRIMINAL LAW NON

Citation: R v Simmons; R v Moore [2015] NSWSC 73
Court: Supreme Court of New South Wales
Date: 16 February 2015
Judge: Hamill J

Background

The NSW Commissioner of Police applied by notice of motion for orders protecting the identities of eleven undercover police officers (referred to as UCO 1 through UCO 11) who were to give evidence in criminal proceedings against two accused. The application was made on the morning of the hearing and dealt with on an ex tempore basis.

The Commissioner sought two categories of orders. The first category concerned the protection of the undercover officers' identities, including orders permitting them to testify under assumed names and for the court to be closed during their evidence. The second category sought suppression of details relating to the broader police operation and the submissions made in support of both applications.

None of the parties to the criminal proceedings opposed the Commissioner's application or took any active position against the orders sought.

  • Whether the court was required, under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), to make orders protecting the identities of the eleven undercover witnesses, and whether any "interests of justice" consideration militated against doing so
  • Whether a non-publication order over the evidence and submissions on the pre-trial voir dire was necessary under the Court Suppression and Non-publication Orders Act 2010 (NSW) to protect the integrity of the trial process
  • Whether it was necessary to determine which specific ground under s 8(1) of the Court Suppression and Non-publication Orders Act justified the second category of orders

Decision

On the first category of orders, Hamill J observed that s 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 imposes a mandatory obligation on the court to make protective orders unless the interests of justice otherwise require. His Honour was not satisfied that the interests of justice called for any departure from that obligation, and accordingly made orders permitting the officers to appear under their assumed names, suppressing publication of their identities and appearances, and closing the court during their evidence.

On the second category, Hamill J noted that all three experienced counsel appearing for the parties agreed that a non-publication order over the voir dire evidence and submissions was necessary. His Honour was satisfied under s 8(1)(a) of the Court Suppression and Non-publication Orders Act that such an order was necessary to prevent prejudice to the proper administration of justice, particularly to protect the integrity of the upcoming trial.

Because satisfaction of the s 8(1)(a) ground was sufficient to justify the order, his Honour declined to resolve at this stage whether other grounds under s 8(1) (specifically paragraphs (c) and (e)) were also engaged by the Commissioner's submissions. That question was expressly left open for potential reconsideration at the conclusion of the voir dire.

Orders Made

  • All eleven undercover officers (UCO 1 to UCO 11) permitted to appear and be referred to under their assumed names throughout all proceedings
  • No publication or disclosure of the real identities of the witnesses, or any material that could identify or facilitate identification of their real identities, except as necessary for the proper conduct of proceedings
  • No publication or disclosure of the assumed identities or assumed names of the witnesses, or any material that could identify or facilitate identification of those assumed names, except as necessary for the proper conduct of proceedings
  • No publication or disclosure of any visual or other description of the witnesses' physical appearances or other identifying features, except as necessary for the proper conduct of proceedings
  • Court to be closed during the witnesses' evidence, with attendance limited to: the accused and their legal representatives; prosecution legal representatives; specified NSW Police Force officers (subject to conditions); the Commissioner's legal representatives; Corrective Services staff; court staff; and any sworn jurors
  • Orders (3) to (5) to apply throughout the Commonwealth of Australia pursuant to s 11 of the Court Suppression and Non-publication Orders Act
  • All orders to apply until further order of the Court pursuant to s 12 of the Court Suppression and Non-publication Orders Act
  • No publication of any evidence or submissions given or made during the pre-trial voir dire, applying throughout the Commonwealth until further order
  • No publication of submissions heard on the morning of the application
  • The confidential affidavit and written submissions to be placed in a sealed envelope, not to be opened except by order of a judge of this Court or a higher court

Key Takeaways

  • Under s 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), a court is obliged to make protective orders for undercover operatives unless it affirmatively concludes that the interests of justice require otherwise. The burden effectively favours suppression.
  • Hamill J found no basis on which the interests of justice required departure from the statutory default, even in the absence of opposition from any party to the proceedings.
  • A non-publication order over voir dire evidence and submissions can be justified solely on the ground that it is necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), without the need to resolve whether additional grounds under the same provision are also satisfied.
  • Suppression orders made under the Court Suppression and Non-publication Orders Act can be extended to operate throughout the Commonwealth of Australia pursuant to s 11 of that Act.
  • The question of whether other statutory grounds under s 8(1) were engaged was expressly left open for reconsideration after the voir dire, illustrating that courts may take a staged approach to resolving the full scope of suppression order bases where one ground is already sufficient.

Legislation and Cases Referenced

Legislation:
- Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), s 34
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 8(1)(a), (c), (e), 11, 12

Cases:
No cases were cited in the judgment.