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Supreme Court 2 May 2018

R v Sparos

[2018] NSWSC 568

Other
CRIMINAL LAW WHETHER INTERESTS OF JUSTICE SO REQUIRE APPLICATION REFUSED

Citation: R v Sparos [2018] NSWSC 568
Court: Supreme Court of NSW
Date: 2 May 2018
Judge(s): Harrison J

Background

The accused faced criminal proceedings before the Supreme Court. In March 2018, Natalie Adams J had certified under s 45(4) of the Crime Commission Act 2012 (NSW) that it may be desirable in the interests of justice for particular evidence, given by an unidentified person before the NSW Crime Commission in September 2012, to be made available to the legal practitioners in the trial.

The matter then came before Harrison J, as the trial judge, to determine the next step: whether the interests of justice actually required that the Crime Commission evidence be released to the accused, his lawyers, and the Crown under s 45(5) of the Act.

The hearing took place in closed court, without the accused or the Crown present, consistent with established procedure. Submissions were received only from the Crime Commission and from the known person (the witness who had given the evidence), who actively opposed disclosure.

  • Whether the court was satisfied, under s 45(5) of the Crime Commission Act 2012 (NSW), that the interests of justice required the Crime Commission evidence to be made available to the accused and the Crown
  • What weight should be given to a witness's reasonable expectation of privacy, and potential safety concerns, when assessing where the interests of justice lie
  • Whether the procedural constraint of deciding the application without hearing from the accused or the Crown affected the court's ability to make a fully informed determination

Decision

Harrison J declined to release the evidence, not being satisfied that the interests of justice required it. The court identified four reasons for that conclusion.

First, neither party had indicated any intention to call the known person as a witness at trial, making it unlikely the evidence would play a material role. Second, after examining the transcript, the court found the evidence did not appear to contain exculpatory or incriminating material that either party would need, nor did it suggest any case theories beyond those already apparent from the Crown case statement and existing evidence.

Third, the known person had been given an assurance at the time of the Crime Commission hearing that his evidence would not be published. Following the approach endorsed in R v Quami & Ors (No 11), the court treated that reasonable expectation of privacy as a relevant factor in assessing the interests of justice. The known person's counsel also raised general concerns about anonymity and potential safety risks, although no specific or identified threat was pointed to in evidence.

Fourth, and simply, the known person actively opposed the disclosure. Given the procedural limitation that neither the Crown nor the accused had been heard, the court acknowledged that a full assessment of the issue might not be possible until more trial evidence had emerged, and accordingly granted both parties liberty to apply to vary or revoke the order.

Orders Made

  • The court declined to make the Crime Commission evidence of the known person available to the accused, his lawyers, or the Crown, not being satisfied that the interests of justice required it.
  • Liberty was granted to the accused and the Crown to apply to vary, amend, or revoke that order.

Key Takeaways

  • Under s 45(5) of the Crime Commission Act 2012 (NSW), a trial court examining Crime Commission evidence must be affirmatively satisfied that the interests of justice require its disclosure before releasing it to the parties; the threshold is not met simply because a certificate has been issued under s 45(4).
  • A witness's reasonable expectation of privacy, arising from assurances given at the time of giving evidence to the Crime Commission, is a relevant consideration in the interests of justice analysis, as confirmed by reference to R v Quami & Ors (No 11).
  • The procedural framework established in R v Francis requires this application to be determined in closed court, in the absence of both the accused and the prosecution, which necessarily limits the submissions available to the court.
  • Where the court's ability to assess the issue is constrained by the early stage of the trial and the absence of submissions from the parties, granting liberty to apply remains an available mechanism to preserve the parties' ability to seek reconsideration as the trial progresses.
  • Active opposition by the known person, combined with the absence of apparent exculpatory or incriminating content in the evidence, weighed against disclosure even where no specific safety threat was established by evidence.

Legislation and Cases Referenced

Legislation
- Crime Commission Act 2012 (NSW), s 45

Cases
- R v Francis [2004] NSWCCA 85; (2004) 145 A Crim R 233
- R v Quami & Ors (No 11) [2016] NSWSC 252