Citation: [2020] NSWSC 811
Court: Supreme Court of New South Wales
Date: 26 June 2020
Judge(s): Adamson J
Background
In December 2015, the NSW Crime Commission obtained leave from the Supreme Court under s 35A of the Crime Commission Act 2012 (NSW) to question four individuals (identified by pseudonyms D150 to D153) who were at that time each subject to pending criminal charges. Following the grant of leave, the Commission issued non-publication directions under s 45 of the Act protecting each person's identity and the contents of their evidence. The Commission took evidence from these four individuals between December 2015 and March 2018.
By November 2019, all charges against the four individuals had been finally resolved by sentencing. This meant each person had effectively moved from the position of a charged accused to that of a compelled witness before the Commission.
In June 2020, the Commission applied by notice of motion to vacate two of the 2015 court orders. The sole stated reason was to enable the Commission to disclose to the Commonwealth Director of Public Prosecutions (DPP) the identity of each individual, the fact that they had given evidence before the Commission, and a brief summary of that evidence, in connection with separate pending criminal trials of other accused persons.
Legal Issues
- Whether the 2015 orders (suppressing the defendants' identities and imposing non-publication conditions) should be vacated to allow the Commission to disclose material to the DPP.
- Whether investigative agencies such as the Commission are obliged to inform the DPP of material relevant to the DPP's duty of disclosure to accused persons in criminal proceedings.
- Whether the application could be determined ex parte and without hearing from the four individuals.
Decision
Issue 1: The Commission's duty to disclose to the DPP
The court found that the DPP owes a duty of disclosure to accused persons in criminal proceedings, extending to material that is relevant or possibly relevant to an issue in the case, that raises a new issue not apparent from the prosecution case, or that holds out a real prospect of providing a lead to such evidence (at [15]). Applying established authority, the court confirmed that investigative agencies, including the Commission, are obliged to inform the DPP of the existence of material that must be disclosed to the defence, and there is no distinction between what is in the hands of the DPP and what is in the hands of the agency (at [16]).
Issue 2: Risk to pending trials
The court found that if the Commission were prevented from disclosing material information to the DPP in relation to pending trials, there would be a real risk that those trials would be unfair and that any resulting conviction could be set aside (at [20]). The potential consequences of non-disclosure, including adjournment, stay of proceedings, or quashing of conviction, underscored the necessity of vacating the 2015 orders (at [18], [20]).
Issue 3: Proceeding ex parte without hearing the defendants
The court was satisfied that no detriment would arise to any of the four individuals from the proposed disclosure, given that the Commission's own non-publication directions under s 45 of the Act would remain in force. The Commission confirmed that any disclosure beyond the DPP would afford each individual an opportunity to be heard (at [19]). The court noted that an exception for DPP disclosure could have been included in the original 2015 orders without difficulty, had it been sought (at [19]).
Orders Made
- The 2015 orders were varied in respect of each of D150, D151, D152 and D153 as follows:
- Order 1(b) was vacated.
- Order 4 was varied to remove the reference to D150 to D153 as defendants referred to by those pseudonyms, so that only the fifth and sixth defendants (D154 and D155) are referred to by pseudonym under that order.
- The court noted that the criminal charges against each defendant had been finally resolved, that the vacated orders related to suppression of their identities, and that the Commission's non-publication directions under s 45 of the Crime Commission Act 2012 remain in effect.
Key Takeaways
- Investigative agencies such as the NSW Crime Commission are obliged to inform the DPP of material in their possession that may be relevant to the DPP's duty of disclosure to accused persons in criminal proceedings, with no distinction drawn between material held by the agency and material held by the DPP (at [16]).
- A failure by the Commission to disclose material information to the DPP in connection with pending trials would risk rendering those trials unfair and exposing any conviction to challenge on appeal (at [20]).
- Under s 35A of the Crime Commission Act 2012, court leave is required to question a person subject to current charges, but once charges are finally resolved, that person effectively becomes a compelled witness rather than a protected accused (at [9], [11]).
- The Supreme Court may vary or vacate its own non-disclosure orders to permit disclosure necessary for compliance with prosecutorial duties, even where the original orders were made ex parte, provided no relevant prejudice to the affected individuals arises (at [19]-[20]).
- The court observed that when originally making orders under s 35A, it would have been open to include an express exception permitting disclosure to the DPP, and the absence of such an exception in 2015 was a matter that could be remedied by later variation (at [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 D150 [2015] NSWSC 1842
- 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