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Supreme Court 5 May 2023

R v Rumsby (No 3)

[2023] NSWSC 482

Public order & justice offences
CRIMINAL PROCEDURE SUPPRESSION AND NON PUBLICATION ORDERS APPLICATION FOR SUPPRESSION ORDERS SUPPRESSION ORDERS GRANTED

Citation: R v Rumsby (No 3) [2023] NSWSC 482
Court: Supreme Court of New South Wales
Date: 5 May 2023
Judge: R A Hulme AJ

Background

The accused stood trial in the Supreme Court on charges arising from alleged admissions made during lengthy interactions with undercover police officers. The officers had been executing what is known as an "Undercover Serious Crime Undercover Technique" (USCUT), a covert investigative strategy in which suspects interact with police whose true identity is unknown to them. The existence of USCUT is not a secret, having been the subject of High Court proceedings and substantial media coverage.

The Commissioner of Police applied for suppression and non-publication orders to protect specific operational details and the identities of the undercover officers involved. The application was not directed at suppressing the USCUT strategy itself or the entirety of the covertly recorded conversations central to the trial.

The court made interim orders on 26 April 2023 but stood the matter over to allow further consideration of whether court closure during the undercover officers' evidence was appropriate, particularly given the competing demands of open justice and officer identity protection.

  • Whether suppression orders should be made under the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of the decision-making and precise methods used in executing the USCUT strategy in this case.
  • Whether orders under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) should be made to prevent disclosure of anything capable of identifying the undercover officers.
  • Whether the court should be closed during the evidence of the undercover officers and their superiors.
  • How open justice principles could be extended as far as possible within the legislative constraints governing these applications.

Decision

His Honour accepted that suppression of the operational decision-making and precise methods used to execute the USCUT strategy in this case was necessary to prevent prejudice to the proper administration of justice under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010. The Commissioner did not seek to suppress the existence of the USCUT strategy or the substance of the covertly recorded conversations themselves.

On the question of court closure, the court expressed initial concern that excluding the public during the officers' evidence sat uneasily alongside the Commissioner's acceptance that those same matters could be discussed freely during addresses in open court. The suppression orders would in any event prevent dissemination of the limited protected material, making the basis for wholesale exclusion difficult to follow.

After further submissions, the Commissioner indicated no objection to the evidence of the undercover officers and the content of the covert recordings being publicly released, provided material caught by the suppression orders was redacted. His Honour accepted that, with that concession, the default position under s 34 of the Law Enforcement and National Security (Assumed Identities) Act applied and it was appropriate for evidence to be given in closed court.

The court confirmed the interim orders as final. The Commissioner's counsel agreed to cooperate in producing timely redactions and an explanatory document for the court's media liaison officer to provide to interested media representatives.

Orders Made

• The interim orders made on 26 April 2023 are confirmed as final orders on the Commissioner's application
• Evidence of undercover officers and covert recordings to be given in closed court
• Evidence of undercover officers and covert recordings (in transcript form) to be released to the public and media with redaction of material caught by suppression orders
• The Commissioner to provide input on appropriate redactions in a timely manner
• The Commissioner to provide an explanatory document to the Court's media liaison officer for interested media representatives

Key Takeaways

  • Suppression orders directed at the specific operational decision-making and methods used to implement an undercover police strategy in a particular case are capable of satisfying the "necessary to prevent prejudice to the proper administration of justice" ground under s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010.
  • Under s 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010, evidence from undercover officers is given in closed court as a default position, and the burden lies on establishing that "the interests of justice otherwise require" a departure from that default.
  • Open justice principles remain a live consideration even within statutory frameworks that restrict publication or permit court closure; the Supreme Court sought to extend openness as far as the legislation allowed.
  • A workable accommodation between identity protection and public access was reached here through redaction of protected material from transcripts and recordings, rather than suppressing the evidence entirely from public view.
  • The Commissioner's concession that counsel could discuss undercover evidence freely in open addresses was a significant factor in the court's reasoning about the limits of the case for total exclusion during the officers' testimony.

Legislation and Cases Referenced

Legislation:
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)
- Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW), s 34

Cases:
- Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39
- R v Cowan; Ex parte Attorney-General [2016] 1 Qd R 433; [2015] QCA 87