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Supreme Court 26 June 2020

NSW Crime Commission v D101

[2020] NSWSC 809

Public order & justice offences
CRIME CRIME COMMISSION VARIATION OF NON DISCLOSURE ORDERS

Citation: NSW Crime Commission v D101 [2020] NSWSC 809
Court: Supreme Court of NSW
Date: 26 June 2020
Judge(s): Adamson J

Background

The NSW Crime Commission had obtained orders from this Court in April 2016, including leave under s 35A of the Crime Commission Act 2012 (NSW) to question a defendant (identified only as D101) who was at that time facing criminal charges. The Commission took evidence from D101 on three separate days in May and June 2016 and issued non-publication directions under s 45 of the Act covering D101's identity, evidence, and related information.

In August 2019, D101 was acquitted of the charges that had prompted the original application. That acquittal effectively transformed D101's position from a charged person compelled to answer questions into an involuntary witness before the Commission.

The Commission then applied to vacate two of the 2016 orders. Its reason was that D101's evidence may be relevant to upcoming prosecutions of other persons, and the existing orders prevented the Commission from fulfilling its disclosure obligations to the Commonwealth Director of Public Prosecutions (the DPP). The hearing was conducted in closed court and on an ex parte basis, given the safety implications for D101.

Legal Issues

  • Whether the existing non-disclosure and non-publication orders should be vacated to permit the Commission to disclose information about D101's evidence to the DPP.
  • Whether the Commission owed a duty to inform the DPP of potentially disclosable material, and whether that duty could override the existing court orders.
  • Whether the vacation of those orders would cause relevant prejudice to D101, and whether D101 needed to be heard before any such orders were made.

Decision

Issue 1: The Commission's duty to disclose to the DPP

The court confirmed that the DPP owes a duty to disclose to accused persons any material that is relevant or possibly relevant to an issue in the case, raises a new issue not apparent from the prosecution case, or holds out a real prospect of providing a lead on such evidence, as stated in R v Keane [1994] 1 WLR 746 and approved in subsequent NSW and High Court authority (at [15]). Critically, investigative agencies such as the Commission are themselves obliged to inform the DPP of the existence of material that must be disclosed to the defence. There is no distinction between material held by the DPP and material held by the agency for these purposes (at [16]).

Issue 2: Whether the existing orders should be vacated

The Commission's deponent believed D101's evidence may be relevant to two District Court trials listed for hearing later in 2020 and 2021. The existing orders prohibited the Commission from informing the DPP of D101's identity, the fact and dates of D101's attendance before the Commission, and a summary of the evidence given (at [13]-[14]). Adamson J was satisfied that if the Commission could not make those disclosures, there was a real risk the pending trials would be unfair and that resulting convictions could be set aside (at [20]). The court therefore vacated orders 3(1)(b) and 4 from April 2016 to allow the Commission to comply with its disclosure duty (at [20]).

Issue 3: Prejudice to D101 and the ex parte hearing

The court noted the Commission had assured it that the s 45 non-publication directions would remain in force, subject only to a variation permitting disclosure to the DPP, and that D101 would have an opportunity to be heard if any further disclosure beyond the DPP were contemplated (at [19]). Adamson J accepted there was no relevant prejudice to D101 from the orders as framed, and that it was not necessary to hear from D101 before making them (at [20]). The court also observed that an exception of this kind could have been sought at the original 2016 hearing and would likely have been granted (at [19]).

Orders Made

  • The Court vacated orders 3(1)(b) and 4 of the orders made on 28 April 2016 in these proceedings.
  • The Court noted that the defendant is no longer the subject of the charges that necessitated the Commission's original application under s 35A of the Crime Commission Act 2012.
  • The Court noted that the vacated orders related to suppression and non-publication of the defendant's identity and the use of a pseudonym.
  • The Court noted that the Commission's non-publication directions under s 45 of the Crime Commission Act 2012 (covering the defendant's evidence, documents produced, and any identifying information) remain in full effect.

Key Takeaways

  • Under the disclosure framework confirmed in this decision, investigative agencies such as the NSW Crime Commission are treated as part of the prosecution for disclosure purposes: material they hold that is potentially relevant to a criminal trial must be communicated to the DPP, who in turn must disclose it to the defence (at [16]).
  • Non-publication and non-disclosure orders made by this Court can be vacated where they prevent an investigative agency from fulfilling its disclosure obligations to the DPP, particularly where pending criminal trials could otherwise be rendered unfair (at [20]).
  • A failure to disclose material information carries significant consequences: pre-trial, it may lead to an adjournment or stay of proceedings; post-conviction, it may result in the quashing of a conviction (at [18]).
  • Where an application to vary protective orders is heard ex parte and in closed court, the court will still scrutinise whether the absent party faces relevant prejudice, and will condition its orders to preserve existing protections as far as practicable (at [19]-[20]).
  • The decision illustrates that the original grant of leave under s 35A does not permanently resolve all disclosure questions arising from Commission hearings: changed circumstances, including the acquittal of the person questioned, may require the court to revisit those orders (at [9], [19]).

Legislation and Cases Referenced

Legislation
- Crime Commission Act 2012 ( NSW), ss 24, 29, 35A, 45
- Criminal Procedure Act 1986 (NSW)

Cases
- Cornwell v R [2010] NSWCCA 59
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
- Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
- New South Wales Crime Commission v D101 [2016] NSWSC 548
- R v Farquharson (2009) 26 VR 410; [2009] VSCA 307
- R v Keane [1994] 1 WLR 746
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197