AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Supreme Court 29 January 2024

R v Parkes; R v Sloan

[2024] NSWSC 16

Homicide
CRIME EVIDENCE MURDER ACCUSED

Citation: R v Parkes; R v Sloan [2024] NSWSC 16
Court: Supreme Court of New South Wales
Date: 29 January 2024
Judge: N Adams J

Background

Two accused, referred to by their roles as co-accused in a murder trial, faced charges relating to the death of a woman in remote bushland near Menai in July 2020. The Crown alleged the co-accused had known the deceased for approximately three weeks before her death, that all three had been staying at the same hotel, and that the accused killed her to avoid repaying money she had invested in their drug dealing operation and to prevent her from going to police.

The NSW Crime Commission had previously investigated matters connected to the murder and held compelled testimony from witnesses, gathered under the Commission's coercive examination powers. That material was subject to a non-publication direction under s 45(1) of the Crime Commission Act 2012 (NSW). The Director of Public Prosecutions applied for orders that would first require the Commission to make the evidence available to the court (under s 45(4)) and then permit its release to the prosecution, the accused, and their legal representatives (under s 45(5)).

One co-accused entered a guilty plea to murder on 23 January 2024, shortly before judgment was delivered, rendering a separate trial application moot. The remaining question was whether the Commission's compelled evidence should be released to the parties under s 45(5).

  • Whether the court should issue a certificate under s 45(4) of the Crime Commission Act 2012 (NSW) requiring the Commission to produce compelled witness evidence to the court.
  • Whether the court should then order under s 45(5) that the evidence be made available to the ODPP, the accused, and their legal representatives on the basis that the interests of justice so required.
  • What factors weigh for and against disclosure of compelled testimony obtained by the Crime Commission in the context of a pending criminal trial.
  • What procedural approach the court should adopt when considering such applications, including whether witnesses should be given an opportunity to be heard before disclosure is ordered.

Decision

Adams J granted the s 45(4) certificate on 22 September 2023, requiring the Commission to produce the compelled material to the court for inspection. That was a preliminary step allowing the court to examine the material before deciding whether wider disclosure was warranted. Reasons for that order were published alongside the s 45(5) ruling.

On the s 45(5) application, the court declined to order disclosure to the parties. The central test, drawn from R v Munshizada, Danishyar and Baines [2020] NSWSC 566, asks whether the Commission's evidence contains something that would have a material bearing on the trial. Having reviewed the compelled testimony and a substantial volume of material from the Crown brief (including witness statements, intercept transcripts, and the accused's ERISP), the court concluded that the material did not meet that threshold.

The court observed that applying for disclosure under s 45(5) is not straightforward, because any judge considering the application necessarily has limited knowledge of what is often a complex brief. In this case, the court was assisted by having examined a significant volume of Crown material in connection with the (ultimately unnecessary) separate trial application, which provided a fuller picture of both the Crown's case and the anticipated defence.

The court also noted the importance of a two-stage procedural approach: the s 45(4) order is made first to bring material before the court, and the court should then give witnesses whose testimony is at issue an opportunity to be heard before any order for broader disclosure is made under s 45(5).

Orders Made

  • The Crown's application for release of material under s 45(5) of the Crime Commission Act 2012 (NSW) is refused.
  • The confidential material produced under the s 45(4) certificate is to be returned to the NSW Crime Commission, subject to an undertaking by its legal representatives to make it available if required by the court.
  • Any application for access to the sealed confidential annexure will not be considered without the NSW Crime Commission first being notified.

Key Takeaways

  • Under s 45(5) of the Crime Commission Act 2012 (NSW), a court will only order disclosure of compelled Commission testimony to the parties where it finds within that material something capable of having a material bearing on the trial. A general relevance to the subject matter is insufficient.
  • The two-stage framework matters: a s 45(4) certificate brings material before the court for inspection, and any witness whose compelled evidence is under consideration should have the opportunity to be heard before the court proceeds to a s 45(5) disclosure order.
  • Adams J confirmed the practice, previously adopted in R v Hawat (No 1) and R v Quami (No 11), of preparing confidential reasons addressing the content of the compelled testimony and sealing them in an envelope accessible only by court order. This protects the integrity of the Commission's processes while maintaining a record for any later appellate review.
  • A court assessing a s 45(5) application benefits significantly from detailed knowledge of the Crown brief. In this case, the court's exposure to Crown material through the separate trial application assisted in determining what the interests of justice required.
  • The Crime Commission's coercive examination powers, including the abrogation of the right to silence and the conduct of private hearings, underpin the strict non-publication regime in s 45. That regime is not easily displaced, and the burden falls on the applicant to demonstrate that disclosure is in the interests of justice.

Legislation and Cases Referenced

Legislation:
- Crime Commission Act 2012 (NSW), ss 21, 24, 25, 27, 39, 45
- Criminal Procedure Act 1986 (NSW), s 142
- Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases:
- Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
- R v Danishyar [2023] NSWSC 922
- R v Hawat (No 1) [2019] NSWSC 1583
- R v Jaghbir (No 1) [2020] NSWSC 762
- R v McCloskey (No 1) [2020] NSWSC 771
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Quami (No 11) [2016] NSWSC 252