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Supreme Court 9 October 2020

R v Spinks; NSW Crime Commission v Spinks

[2020] NSWSC 1708

Homicide
CRIMINAL LAW CRIME COMMISSION EXAMINATIONS WHERE MATERIAL RELEVANT TO MURDER TRIAL

Citation: R v Spinks; NSW Crime Commission v Spinks [2020] NSWSC 1708
Court: Supreme Court of New South Wales
Date: 9 October 2020
Judge(s): Hamill J

Background

The accused was charged with the murder of Nathan Costello in a drive-by shooting and was awaiting trial in Wollongong, scheduled for February 2021 (having been adjourned from an earlier date due to COVID-19). Two witnesses had previously given evidence before the NSW Crime Commission in closed examinations. The Crime Commission had directed, under the relevant provision of the Crime Commission Act 2012 (NSW), that the witnesses' evidence would not be published.

The Director of Public Prosecutions brought a notice of motion seeking orders requiring the Crime Commission to produce transcripts of those two examinations to the Court. The material before the Court indicated that the examination evidence appeared, at least on its face, to be relevant both to the prosecution case and to the conduct of the accused's defence.

The Crime Commission and all parties to the trial did not oppose the making of the orders sought.

  • Whether the two conditions in s 45(4) of the Crime Commission Act 2012 (NSW) were satisfied, namely: (a) that the accused had been charged with an offence before a court of the State, and (b) that it "may be desirable" in the interests of justice for the Commission's evidence to be made available to the accused or his legal representative and to the prosecutor.
  • Whether the Court should exercise its discretion under s 45(4) to issue a certificate to the Crime Commission requiring production of the transcripts to the Court.

Decision

Hamill J was satisfied that both threshold conditions in s 45(4) were met. The first condition, that the accused had been charged with an offence before a court of the State, was plainly established by the pending murder charge. The second condition required the Court to assess whether it "may be desirable" in the interests of justice that the Commission's evidence be made available. The annexed material was sufficient to demonstrate, at least on its face, that the transcripts may be relevant to both the prosecution and defence cases.

His Honour emphasised that an order under s 45(4) does not itself result in the material being provided to the parties. It only requires the Commission to produce the transcripts to the Court, after which a further hearing would be needed to determine whether the more stringent test in s 45(5) is satisfied before any disclosure to the parties could be made.

Given that the trial date was approaching and no party opposed the orders, Hamill J concluded it was appropriate to issue the certificate promptly. He deferred all questions about ultimate disclosure to the parties, noting that the witnesses themselves might have an opportunity to be heard at the next stage.

Orders Made

  • Pursuant to s 45(4) of the Crime Commission Act 2012 (NSW), the transcript of Witness A's evidence before the NSW Crime Commission on 21 March 2019 (referred to in the NSWCC s 45(1) specification dated 18 March 2020) to be provided by the NSWCC to the Court.
  • Pursuant to s 45(4) of the Act, the transcript of Witness B's evidence before the NSWCC on 1 August 2019 (referred to in the NSWCC s 45(1) specification dated 18 March 2020) to be provided by the NSWCC to the Court.
  • A non-publication order over the names of Witness A and Witness B made on an interim basis pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), with final orders to follow after inspection of the material and a further hearing.

Key Takeaways

  • Under s 45(4) of the Crime Commission Act 2012 (NSW), a court need only be satisfied that it "may be desirable" in the interests of justice for Crime Commission evidence to be produced, a threshold deliberately lower than the more stringent test in s 45(5) which governs actual disclosure to the parties.
  • A s 45(4) certificate obliges the Crime Commission to produce the relevant transcripts to the Court, but does not automatically make that material available to the accused or the prosecutor. A further, separate determination is required at the s 45(5) stage.
  • The fact that witnesses were informed by the Crime Commission that their evidence would not be published does not preclude the court from ordering production of transcripts at the s 45(4) stage, though those witnesses may be entitled to be heard before any order for disclosure to the parties is made.
  • Where trial dates are imminent and all parties consent, the Supreme Court treated prompt resolution of the s 45(4) question as important to the orderly conduct of the upcoming trial.
  • The court's discretion under s 45(4) is expressed by the word "may", confirming that even where both conditions are satisfied, the court retains a discretion on whether to issue the certificate.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), s 45(1), s 45(4), s 45(5)
- Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Cases: No cases were cited in the judgment.