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6
Supreme Court 18 June 2020

R v Jaghbir (No 1)

[2020] NSWSC 762

Public order & justice offences
CRIMINAL PROCEDURE WHERE CERTAIN EVIDENCE IS RELEASED

Citation: R v Jaghbir (No 1) [2020] NSWSC 762
Court: Supreme Court of New South Wales
Date: 18 June 2020
Judge: Davies J

Background

The accused faced a charge of procuring and counselling unknown persons to murder a named individual in March 2017. In preparation for trial, both the Crown and the accused sought access to transcripts of compulsory examinations conducted by the NSW Crime Commission on four separate occasions in 2017 and 2018. Two witnesses had been examined, referred to in the judgment as Witness 1 and Witness 2.

The Crime Commission examinations were subject to a non-publication order under s 45(1) of the Crime Commission Act 2012 (NSW). Release of the transcripts to the parties therefore required the Court to be satisfied, under s 45(5), that the interests of justice required the material to be made available. A prior application to a Magistrate in the Local Court regarding two of the transcripts had been refused, though all parties accepted that the present application arose in different circumstances.

Proceedings were complicated by the Covid-19 pandemic, which delayed Basha enquiries (pre-trial examinations of proposed Crown witnesses to assess their likely evidence), and by the fact that Witness 2 was separately being prosecuted for allegedly giving false evidence to the Crime Commission in the very examinations under consideration.

  • Whether the interests of justice "required" the release of the Crime Commission examination transcripts under s 45(5) of the Crime Commission Act 2012 (NSW)
  • What factors are relevant to that assessment, and how heavily the word "require" in s 45(5) sets the threshold
  • Whether a Basha enquiry of Witness 2 should be held before the Court assessed whether the transcripts should be released
  • Which portions, if any, of the transcripts of Witness 1 and Witness 2 should be made available to the parties

Decision

Davies J applied the framework developed in R v Qaumi (No 11) and refined in R v Hawat (No 1), treating the non-release of evidence as the starting presumption. Release is only warranted where the statutory test is met, and the word "require" sets a relatively high bar for any applicant seeking the material.

The judgment identified factors weighing in favour of disclosure, including whether the witness is already a Crown witness, whether the evidence is highly probative of an important trial issue, whether it is exculpatory of the accused, and whether the witness consents. Factors weighing against disclosure include potential physical danger to the witness, a history of refusing to answer questions, a witness giving false or misleading evidence to the Commission, and any risk of trial disruption.

On Witness 2's submission that a Basha enquiry should precede any release decision, the Court declined to take that course. Because Witness 2 had refused to provide any statement to police or prosecutors, no information was available about that witness's knowledge or involvement in the events surrounding the death, making a pre-release Basha enquiry of limited utility.

After re-reading all transcripts following the Basha enquiry of Witness 1 on 9 June 2020, the Court concluded that the interests of justice required the release of identified portions of both witnesses' transcripts. Redacted versions were ordered to be produced, with strict conditions on access and further disclosure. Full reasons relating to Witness 1 were confined to a confidential annexure to the judgment.

Orders Made

  • The NSW Crime Commission was to produce redacted transcripts of Witness 1 and Witness 2 containing only the identified portions to the Court by 15 June 2020.
  • The redacted transcripts were to be made available only to the Crown prosecutor, counsel and solicitor for the accused, and the legal representatives of Witness 2.
  • No copies of the redacted transcripts were to be made without leave of the Court.
  • The redacted transcripts were not to be provided to or communicated to any person other than those specified.
  • The Court noted its satisfaction under s 45(5) that the accused was charged before the Supreme Court, the evidence was subject to a Crime Commission non-publication order, and the interests of justice required release on the stated conditions.

Key Takeaways

  • Under s 45(5) of the Crime Commission Act 2012 (NSW), the starting presumption is that compelled Crime Commission evidence is not to be released; the interests of justice must affirmatively "require" release before an order is made, which sets a relatively high threshold.
  • The balancing exercise involves weighing competing factors: probative value, the witness's role at trial, consistency with anticipated evidence, and exculpatory potential on one side; risks of physical danger, false evidence, uncooperative witnesses, and trial disruption on the other.
  • A prior unsuccessful application before a Magistrate does not preclude a fresh application in the Supreme Court where the surrounding circumstances have materially changed, such as intervening Basha enquiries.
  • Where a witness refuses to provide any statement to investigators, the court retains power to assess the worth of examination material without first requiring a Basha enquiry of that witness, if such an enquiry would yield no useful information.
  • Partial or redacted release is available: the Court need not release transcripts in their entirety and may confine the order to identified portions that satisfy the statutory test, subject to conditions limiting further dissemination.

Legislation and Cases Referenced

Legislation
- Crime Commission Act 2012 (NSW), ss 25(2), 45(1), 45(4), 45(5)

Cases
- R v Qaumi (No 11) [2016] NSWSC 252 (Hamill J)
- R v Hawat (No 1) [2019] NSWSC 1583 (Adams J)
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566 (Fagan J)