Citation: NSW Crime Commission v D181 [2020] NSWSC 813
Court: Supreme Court of NSW
Date: 26 June 2020
Judge(s): Adamson J
Background
The NSW Crime Commission had in 2015 obtained leave under s 35A of the Crime Commission Act 2012 (NSW) to question a person referred to as D181, who at that time faced pending criminal charges. Hall J granted leave and made non-publication and suppression orders protecting D181's identity, requiring the use of a pseudonym. The Commission took evidence from D181 in December 2015 and January 2016.
By May 2018, D181 had been convicted of one of the relevant charges and another charge was withdrawn. With the charges finalised, D181's position shifted to that of a compelled witness before the Commission rather than an accused person.
In June 2020, the Commission applied to vacate Hall J's non-publication and suppression orders. The Commission's sole stated reason was that it needed to disclose information about D181's evidence to the Commonwealth Director of Public Prosecutions (DPP) in connection with two pending District Court trials, and the existing orders prevented it from doing so.
Legal Issues
- Whether the court should vacate the 2015 non-publication and suppression orders made by Hall J to permit the Commission to comply with its duty of disclosure to the DPP
- Whether vacating the orders would cause detriment to D181, given that the hearing was conducted in closed court and ex parte
Decision
Issue 1: The Commission's duty of disclosure to the DPP
The court confirmed that investigative agencies such as the Commission are obliged to inform the DPP of the existence of material that must be disclosed to the defence, with no distinction between what is held by the DPP directly and what is held by the agency (at [16]). The relevant test for disclosable material is whether it is relevant or possibly relevant to an issue in a pending case, raises a new issue not apparent from the prosecution case, or holds out a real prospect of providing a lead on evidence of that kind (at [15]). This duty is also reflected in the Criminal Procedure Act 1986 (NSW) and the DPP's own Statement on Disclosure in Prosecutions (at [17]).
Issue 2: Consequences of non-disclosure
Adamson J observed that a prosecutor's failure to comply with the duty of disclosure can, if exposed pre-trial, lead to an adjournment or stay of proceedings, and if the accused is already convicted, can result in the quashing of that conviction (at [18]). These consequences underscored the necessity of allowing the Commission to make the proposed disclosures.
Issue 3: Detriment to D181 and the ex parte hearing
The court was satisfied that vacating the orders would not cause relevant prejudice to D181 (at [19]-[20]). The Commission confirmed that its non-publication direction under s 45 of the Act would remain in effect, varied only to permit disclosure to the DPP. Adamson J noted that any further disclosure beyond the DPP would require D181 to be given an opportunity to be heard (at [19]). The court also observed that had the exception for DPP disclosure been sought in 2015, there was no reason the original court would have refused it (at [19]).
Issue 4: Vacating the orders
Adamson J held that vacating the relevant orders was necessary to permit the Commission to comply with its disclosure duty, thereby enabling the DPP in turn to comply with its own duty to disclose to the accused in the pending trials (at [20]). Without such disclosure, there was a risk those trials would be unfair and any resulting convictions could be set aside (at [20]).
Orders Made
- The Court vacated order 1(b) made on 27 November 2015 and order 3 made on 3 December 2015 in the proceedings.
- The Court noted that D181 is no longer subject to the charges that necessitated the original s 35A application.
- The Court noted that the vacated orders related to the suppression and non-publication of D181's identity and the use of a pseudonym.
- The Court noted that the Commission's non-publication directions issued under s 45 of the Crime Commission Act 2012, covering D181's evidence, documents produced, and any identifying information, remain in full effect.
Key Takeaways
- Investigative agencies such as the NSW Crime Commission bear a disclosure obligation to the DPP that mirrors the DPP's own duty: there is no distinction between material held by the prosecution and material held by an agency for the purpose of the disclosure regime (at [16]).
- Where court-made suppression or non-publication orders prevent an investigative agency from fulfilling its disclosure duty to the DPP, those orders may be vacated on the agency's application, even where the original hearing was ex parte (at [20]).
- A failure to disclose material information relevant to pending criminal trials carries serious consequences, including a risk that trials will be found unfair and that resulting convictions may be quashed (at [18], [20]).
- The Commission's statutory non-publication directions under s 45 of the Crime Commission Act 2012 are a distinct instrument from court-made suppression orders; vacating the court orders did not extinguish the s 45 protections, which remained in force (at [19]).
- Where further disclosure beyond the DPP is contemplated, the court confirmed that D181 would be entitled to an opportunity to be heard before any such step is taken (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 D181 [2015] NSWSC 1836
- 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