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Supreme Court 19 June 2020

R v McCloskey (No 1)

[2020] NSWSC 771

Public order & justice offences
CRIMINAL PROCEDURE WHERE APPLICATION IS UNTIMELY APPLICATION REFUSED

Citation: R v McCloskey (No 1) [2020] NSWSC 771
Court: Supreme Court of New South Wales
Date: 19 June 2020
Judge: Davies J

Background

The accused was charged on a joint indictment with a co-accused for the murder of a man in June 2013. The trial had already been vacated once in August 2019, and the accused's trial was separately fixed to commence on 29 June 2020 before Davies J, following orders from the Court of Criminal Appeal that the two accused be tried separately.

In early 2020, the Crown became aware that the NSW Crime Commission may have held material relevant to the prosecution. The Crown began correspondence with the Crime Commission in February and March 2020 and raised the possibility of a section 45 application at a directions hearing on 1 May 2020. Despite that early flag, the Crown did not file its notice of motion until 26 May 2020, less than five weeks before the trial was due to commence.

The motion sought a certificate under section 45(4) of the Crime Commission Act 2012 (NSW), and orders under section 45(5) for the release of evidence given before the Crime Commission across approximately 30 days of examinations between February 2015 and April 2018. The resulting transcript exceeded 1,750 pages.

  • Whether the Crown's application under section 45(5) of the Crime Commission Act 2012 (NSW) for release of Crime Commission examination transcripts should be granted.
  • Whether the application was made in sufficient time to permit the trial judge to carry out the proper assessment required by section 45(5).
  • Whether granting the application would have required the trial to be vacated a second time.

Decision

Davies J refused the application. The central reason was that there was simply insufficient time before the trial's commencement date to properly assess more than 1,750 pages of transcript and determine whether the interests of justice required the release of any portion of them. Section 45(5) requires the judge to be personally satisfied of that statutory test, and the Crime Commission's offer of summaries and highlighted passages could not substitute for a reading of the whole transcript. This was because the Crime Commission could not be expected to know the specific issues in contest at trial against which the transcript evidence needed to be assessed.

His Honour also noted that the process does not end once the judge finishes reading the transcripts. Procedural steps follow, including notification to witnesses and a private hearing with the Crime Commission and potentially the witnesses' legal representatives. These steps require adequate lead time, which was entirely absent here.

Davies J was critical of the Crown's approach. The trial had already been vacated once, and it was unacceptable in those circumstances that it should be vacated again due to a late application. His Honour endorsed remarks by Fagan J in related proceedings about the need for the ODPP and the Crime Commission to establish a protocol ensuring these applications are made at the earliest possible opportunity after a trial date is fixed.

Orders Made

• The Crown's application in respect of Mr McCloskey was refused
• Publication restriction was lifted (22 September 2020)

Key Takeaways

  • An application under section 45(5) of the Crime Commission Act 2012 (NSW) requires the trial judge to be personally satisfied that the interests of justice require release of the examination evidence; summaries provided by the Crime Commission cannot substitute for a full review of the transcripts.
  • The statutory process under section 45(5) involves multiple procedural steps after the judge reads the transcripts, including witness notification and private hearings, all of which require adequate time before trial.
  • Where an earlier trial date has already been vacated, the prospect of a second vacation due to a belated Crown application weighs heavily against granting the application.
  • The Supreme Court endorsed the view that both the Crime Commission and the ODPP bear responsibility for ensuring timely disclosure: the Crime Commission should monitor upcoming trials and notify the Crown at the earliest opportunity, while the Crown should alert the trial judge to any anticipated section 45 application at the time the trial date is fixed.
  • Insufficient explanation for delay in bringing the application was a significant factor against granting it, particularly where the Crown had multiple directions hearings at which the matter could have been progressed more promptly.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), s 45 (including ss 45(4) and 45(5))
- Criminal Appeal Act 1912 (NSW), s 5F
- Director of Public Prosecutions Act (NSW), s 15A

Cases:
- Hamalainen v R [2019] NSWCCA 276
- R v McCloskey; R v Hamalainen (No 2) [2019] NSWSC 1176
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Jaghbir (No 1) [2020] NSWSC 762
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Qaumi (No 11) [2016] NSWSC 252