Citation: NSW Crime Commission v D109 [2020] NSWSC 810
Court: Supreme Court of New South Wales
Date: 26 June 2020
Judge(s): Adamson J
Background
The NSW Crime Commission had obtained leave from the Supreme Court in August 2015 to question a person (referred to by the pseudonym D109) who was at that time subject to pending criminal charges. Section 35A of the Crime Commission Act 2012 (NSW) requires court leave before the Commission can question a person who is the subject of a current charge. McCallum J granted that leave and made associated orders, including a pseudonym order and a suppression order prohibiting disclosure of D109's identity and the fact and content of D109's evidence.
The Commission took evidence from D109 in September 2015. In August 2017, D109 was convicted on the charges that had been pending at the time of the original proceedings.
By 2020, the Commission had identified that D109's evidence may be relevant to two upcoming District Court criminal trials involving other accused persons. The Commission applied to vacate the suppression orders so it could fulfil its disclosure obligations to the Commonwealth Director of Public Prosecutions (DPP). The hearing was conducted in closed court and on an ex parte basis (without D109 being present) to protect D109's safety.
Legal Issues
- Whether the 2015 orders made by McCallum J, including the pseudonym order and the suppression order prohibiting disclosure of D109's identity and evidence to the DPP, should be vacated.
- Whether the Commission's disclosure obligation to the DPP could be fulfilled while the 2015 orders remained in place.
- Whether it was appropriate to proceed ex parte without hearing from D109 before vacating the orders.
Decision
Issue 1: The Commission's duty to disclose to the DPP
The court confirmed that investigative agencies such as the Commission are obliged to inform the DPP of material that must be disclosed to the defence, including material held by the agency rather than the DPP itself (at [16]). The Commission's evidence from D109 was potentially relevant to pending criminal trials, placing it within the scope of that obligation (at [13]). The DPP's own duty of disclosure extends to material that is relevant or possibly relevant to an issue in a case, that raises a new issue not apparent from the prosecution case, or that might provide a lead on such evidence (at [15]).
Issue 2: Whether vacating the orders was necessary
Adamson J found that unless the 2015 suppression order (order 1(b)) was vacated, the Commission could not lawfully disclose D109's identity, the fact of D109's appearance before the Commission, or a summary of D109's evidence to the DPP (at [14]). Without that disclosure, there was a real risk the pending trials would be unfair and any resulting convictions could be set aside (at [20]). The court was also satisfied that, had the Commission sought an exception permitting DPP disclosure at the time of the original application, such an exception would have been granted (at [19]).
Issue 3: Proceeding ex parte without notifying D109
The court was satisfied it was appropriate to proceed without hearing from D109. The Commission's section 45 non-publication directions would remain in force, and D109 would have an opportunity to be heard before any disclosure beyond the DPP occurred (at [19]). The court found no relevant prejudice to D109 arising from vacating the orders in these circumstances (at [20]).
Orders Made
- The pseudonym order made on 26 August 2015 by McCallum J (that the defendant be referred to as D109) was vacated.
- Order 1(b) of the orders made on 26 August 2015 by McCallum J was vacated.
- The court noted that the defendant is no longer subject to the charges that necessitated the original section 35A application.
- The court noted that the Commission's non-publication directions issued under section 45 of the Crime Commission Act 2012, covering D109's evidence, documents produced, and information capable of identifying D109, remain in effect.
Key Takeaways
- Investigative agencies such as the NSW Crime Commission are obliged to inform the DPP of material that must be disclosed to the defence, and there is no distinction between material held by the DPP and material held by the agency for the purposes of that duty (at [16]).
- Where a suppression order prevents the Commission from complying with its disclosure duty to the DPP, and the evidence may be relevant to pending criminal trials, the Supreme Court will vacate that order to remove the obstacle to compliance (at [20]).
- A prosecutor's failure to comply with disclosure obligations can lead to adjournment or stay of proceedings before trial, and to the quashing of convictions after trial, underscoring the seriousness with which courts treat non-disclosure (at [18]).
- Suppression orders made in connection with section 35A proceedings do not automatically accommodate the Commission's subsequent disclosure obligations; the Commission should, at the time of any such application, seek express exceptions permitting necessary disclosures to prosecuting authorities (at [19]).
- The section 45 non-publication directions issued by the Commission operated independently of the court orders that were vacated, and their continuation provided adequate protection to the witness pending any further disclosure beyond the DPP (at [19]-[20]).
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 D109 [2015] NSWSC 1244
- 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