Citation: [2020] NSWSC 812
Court: Supreme Court of New South Wales
Date: 26 June 2020
Judge(s): Adamson J
Background
The NSW Crime Commission commenced proceedings in September 2015 seeking leave under section 35A of the Crime Commission Act 2012 (NSW) to question a person referred to by the pseudonym D163, who at that time was facing criminal charges. Bellew J granted that leave in an ex parte hearing. Following the hearing, the Commission took evidence from D163 in September 2015 and issued a non-publication direction under section 45 of the Act, covering D163's identity, evidence, and any information enabling identification or location.
D163 was subsequently convicted of the relevant charges in September 2017. With those charges resolved, D163 stood in the position of an involuntary witness compelled to give evidence, rather than an accused person.
By 2020, the Commission formed the view that D163's evidence may be relevant to the prosecutions of two other persons whose trials were listed in the District Court later that year and the following year. The existing court orders prevented the Commission from disclosing this information to the Commonwealth Director of Public Prosecutions (DPP). The Commission applied to vacate the relevant suppression orders to allow it to meet its disclosure obligations.
Legal Issues
- Whether orders made by Bellew J in 2015 suppressing D163's identity and evidence details should be vacated to allow the Commission to disclose that information to the DPP.
- Whether disclosure to the DPP without first notifying or hearing from D163 was appropriate given the ex parte and closed-court nature of the application.
- What the scope of an investigative agency's obligation is to inform the DPP of material relevant to ongoing prosecutions.
Decision
Issue 1: Vacating the 2015 suppression orders
Adamson J found it necessary to vacate orders 1 and 2(b) made by Bellew J to permit the Commission to fulfil its disclosure duty to the DPP (at [19]). The court reasoned that, had an exception for DPP disclosure been sought at the time of the original application, there was no reason it would not have been granted (at [18]). The sole purpose of the application was to enable the Commission to inform the DPP of D163's identity, the dates of attendance before the Commission, that evidence was given under leave granted under section 35A, and a brief summary of that evidence (at [12]-[13]).
Issue 2: Proceeding without hearing from D163
The court was satisfied that no relevant prejudice arose to D163 from the proposed disclosure, and that it was unnecessary to hear from D163 before making the orders (at [18]-[19]). The Commission gave assurances that D163's section 45 non-publication directions would remain in effect, and that D163 would have an opportunity to be heard before any disclosure beyond the DPP occurred (at [18]).
Issue 3: The disclosure duty and its importance
Adamson J outlined that investigative agencies such as the Commission are obliged to inform the DPP of material that must be disclosed to the defence, on the basis that there is no relevant distinction between material in the hands of the DPP and material in the hands of the agency (at [15]). The court noted that breach of the disclosure duty carries serious consequences: pre-trial, it can result in an adjournment or stay; post-conviction, it can lead to a conviction being quashed (at [17]). Failure to disclose the relevant material would risk the fairness of the pending trials and any resulting convictions (at [19]).
Orders Made
- The Court vacated orders 1 and 2(b) of the orders made on 15 September 2015.
- The Court noted that D163 is no longer subject to the charges that necessitated the original section 35A application.
- The Court noted that the vacated orders related to suppression and non-publication of D163's identity and use of a pseudonym.
- The Court noted that non-publication directions issued by the Commission under section 45 of the Crime Commission Act 2012, covering D163's evidence, documents produced, and any identifying information, 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 accused persons in criminal proceedings, with no distinction drawn between material held by the agency and material held by the DPP (at [15]).
- Where existing court suppression orders prevent an investigative agency from fulfilling its disclosure obligations, the Supreme Court may vacate those orders to the extent necessary to allow the agency to inform the DPP of relevant material (at [19]).
- Under section 35A of the Crime Commission Act 2012, leave of the Supreme Court is required before the Commission may question or require production from a person who is the subject of a current charge; once those charges are finally determined, that person is treated as an ordinary compelled witness (at [8], [10]).
- Non-publication directions issued by the Commission under section 45 of the Crime Commission Act 2012 remain enforceable even after related court suppression orders are vacated, and any broader disclosure beyond the DPP may require a further hearing involving the affected person (at [18]).
- Failure to disclose material information to the DPP in connection with pending trials carries significant consequences, including the risk that any conviction resulting from an unfair trial could be set aside on appeal (at [17], [19]).
Legislation and Cases Referenced
Legislation
- Crime Commission Act 2012 (NSW), ss 24, 29, 35A, 45
- Criminal Procedure Act 1986 (NSW)
Cases
- R v Keane [1994] 1 WLR 746
- R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
- Cornwell v R [2010] NSWCCA 59
- R v Farquharson (2009) 26 VR 410; [2009] VSCA 307
- 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