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District Court 26 October 2022

R v Russell

[2022] NSWDC 513

DrugsPublic order & justice offences
PUBLICATION ORDERS — GROUNDS

Citation: R v Russell [2022] NSWDC 513
Court: District Court of New South Wales
Date: 26 October 2022
Judge: Scotting DCJ

Background

Following the sentencing of the offender for drug offences (reported in R v Russell [2022] NSWDC 416), the Commissioner of Police brought a Notice of Motion seeking ancillary orders to reinforce existing suppression orders. Three Crown witnesses, identified only as Witness A, Witness B, and Witness C, had participated as civilian operatives in controlled operations authorised under the Law Enforcement (Controlled Operations) Act 1997. Their true identities had been suppressed by consent orders made in July 2022, to remain in force for up to 65 years.

The Commissioner sought additional orders requiring the offender's legal representatives to return physical copies of the Brief of Evidence to the Crown Solicitor's Office and to destroy all electronic copies. The Brief Material across the two relevant tranches ran to roughly 2,900 pages in total, with over 1,000 of those pages containing information capable of identifying one or more of the witnesses.

The offender opposed the orders, arguing he needed continued access to the Brief Material for two purposes: to defend proceedings brought against him in the NSW Crime Commission, and to obtain legal advice about a potential civil claim against the State arising from an alleged fire caused by listening devices placed on his business premises.

  • Whether additional orders requiring delivery-up and destruction of Brief of Evidence material were necessary to give practical effect to the existing suppression and non-publication orders.
  • Whether the offender's stated reasons for retaining the material (Crime Commission proceedings and potential civil litigation) constituted permissible grounds to resist such orders, or whether they amounted to the use of material for collateral purposes in the sense described in Hearne v Street (2008) 235 CLR 125.
  • How to balance the protection of witness safety against the offender's legal professional privilege in material created by his legal representatives.

Decision

Scotting DCJ was satisfied, on the basis of both open and confidential evidence, that there were good reasons to make the orders sought. The Acting Assistant Commissioner had deposed to an ongoing risk of physical harm to Witnesses A, B, and C and their families if their identities became known to the offender's associates or the general public. The court accepted that the volume of identifying material embedded in the Brief made delivery-up and destruction orders necessary to give the suppression orders any practical force.

The court rejected the offender's argument that he needed to retain the material for the Crime Commission and civil proceedings. On the Crime Commission point, his Honour noted that the Commission itself had powers to provide relevant material in a format that protected witness identities. On the civil claim, his Honour observed that the scope of necessary information was relatively narrow and could be obtained through a preliminary discovery application in an appropriate court on suitable terms.

The court found that the orders as framed adequately preserved the offender's legal professional privilege. Physical copies were to be returned to the Crown Solicitor's Office in sealed boxes marked "Subject to Legal Professional Privilege," with no one employed by the Crown Solicitor permitted to open them without a court order. The court recorded expressly that compliance with the return order did not constitute a waiver of privilege.

Orders Made

  • At the conclusion of proceedings (including any appeal period), the offender and all current and former legal representatives must return all physical copies of tranches 1 and 2 of the Brief of Evidence to the Crown Solicitor's Office, sealed and marked "Subject to Legal Professional Privilege" to the extent of any such claim.
  • The Crown Solicitor's Office must secure those materials for five years and produce them to the court if required; no employee of the Crown Solicitor may open privilege-marked boxes without a court order.
  • All electronic copies of tranches 1 and 2, and all listening device audio recordings from tranche 3, in the possession or accessible to the offender or any legal representative must be destroyed.
  • The Brief Material returned to the Crown Solicitor's Office may only be used for purposes of the present proceedings or any related appeal.
  • "Brief Material" is defined to include all material served in the Brief of Evidence (paper or electronic) and any notes made of the contents of such material.
  • Prior written notice by email must be given to the nominated Crown Solicitor before any subpoena or other legal process is issued that may disclose the true identities of any of the three witnesses.
  • All confidential affidavits and submissions must be returned to the Crown Solicitor at the conclusion of the application hearing.
  • The Crown Solicitor must promptly notify in writing all legal representatives who have previously acted for the offender in this proceeding of the terms of the orders.
  • The court noted that returning material in sealed, privilege-marked boxes does not constitute a waiver of legal professional privilege.

Key Takeaways

  • The District Court confirmed that delivery-up and destruction orders over Brief of Evidence material can be made as ancillary measures under the Courts Suppression and Non Publication Act 2010 where existing suppression orders would otherwise lack practical effect.
  • A desire to use Brief of Evidence material in collateral proceedings, such as a Crime Commission hearing or a prospective civil claim, does not of itself constitute a sufficient basis to resist delivery-up orders; the principle from Hearne v Street (2008) 235 CLR 125 against collateral use of compulsorily disclosed material was applied in this criminal context.
  • Legal professional privilege in Brief Material created by the offender's legal representatives can survive a court-ordered return of that material, provided the orders are structured to prevent access without further court authorisation.
  • Where an offender has a legitimate need for information contained in Brief Material for other proceedings, alternative mechanisms (such as Crime Commission powers or preliminary discovery) may provide adequate access without exposing suppressed identifying information.
  • The orders bound only the offender's current legal representatives as regards possession; the Commissioner retained the option to serve the orders separately on any formerly retained legal representatives.

Legislation and Cases Referenced

Legislation:
- Courts Suppression and Non Publication Act 2010 (NSW), ss 7, 8(1)(a), (c) and (e)
- Law Enforcement (Controlled Operations) Act 1997 (NSW), ss 28, 33
- Criminal Procedure Act 1986 (NSW), s 33

Cases:
- R v Russell [2022] NSWDC 416 (the related sentencing judgment)
- Hearne v Street (2008) 235 CLR 125 (High Court authority on collateral use of disclosed material)
- Edwards v Avant Insurance Ltd [2020] TASSC 8 (application of Hearne v Street principles in criminal proceedings)