AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 17 August 2026

R v Noufl (No 2) (Section 45 Crime Commission Act)

[2026] NSWSC 983

Public order & justice offences
CRIMINAL LAW CRIME COMMISSION PROVISIONAL VIEW CONFIRMED IN ONE CASE MATTER MAY BE RE EVALUATED DURING TRIAL

Citation: R v Noufl (No 2) (Section 45 Crime Commission Act) [2026] NSWSC 983
Court: Supreme Court of NSW
Date: 17 August 2026
Judge(s): Hamill J

Background

This decision concerns a criminal prosecution in which the accused's legal representatives and the prosecution sought access to transcripts of evidence given by two witnesses before the NSW Crime Commission. The Crime Commission had produced that material to the Court under seal following a certificate granted by Hamill J in June 2025 under s 45(4) of the Crime Commission Act 2012 (NSW).

Section 45(5) of the Act empowers the Court to order that Crime Commission material be made available to parties in criminal proceedings where the interests of justice require it. The Court's earlier decision in this matter ([2026] NSWSC 982) had provisionally concluded that both witnesses' transcripts should be released, but the Court reserved final orders to allow interested parties an opportunity to be heard.

The two witnesses had given evidence before the Crime Commission on different dates. Each was treated as a separate interested party, with hearings listed at different times on a suppressed date to preserve anonymity.

  • Whether the interests of justice required the disclosure of Crime Commission transcripts to the prosecution and defence under s 45(5) of the Crime Commission Act 2012 (NSW), separately considered for each of the two witnesses
  • Whether strong submissions from an interested party, including concerns about personal safety and relevance, could displace the Court's provisional view that disclosure was warranted
  • Whether the question of disclosure could appropriately be deferred and revisited during the course of the trial

Decision

First witness: The first interested party advised through the Crime Commission that they did not seek to be heard. The Crime Commission maintained a neutral stance. Hamill J remained satisfied that the interests of justice required disclosure of the first witness's transcript to the legal representatives of both the prosecution and the accused. Orders for release were made with agreed redactions.

Second witness: The second interested party appeared through a lawyer and advanced detailed submissions opposing disclosure. Those submissions pointed to genuine fears for the witness's personal safety (unrelated to the accused), the compelled nature of the witness's evidence and assurances given by the Crime Commission that it would not be widely disseminated, the limited relevance of the evidence to the issues expected at trial, and the availability of alternative means of obtaining the same information, including through a "Basha inquiry" (a pre-trial examination of a prospective witness to allow the defence to consider whether to call that witness).

Hamill J found those submissions helpful and persuasive. The Court revised its earlier provisional view and declined to order disclosure of the second witness's transcript at this stage. The Court was not satisfied that the interests of justice required release, applying the approach to that test set out in R v Jaghbir (No 1) [2020] NSWSC 762. In particular, the Court found the evidence was unlikely to impact meaningfully on the confined issues in the trial, the witness's safety concerns appeared genuine, the witness was compelled to give evidence over objection and with assurances of limited dissemination, and both parties' legal representatives could approach the witness directly.

Ongoing review: Hamill J noted that declining to order disclosure at this point does not foreclose the issue. The Court identified at least one potential development during the trial that could prompt reconsideration, and expressly reserved the ability to revisit the matter if circumstances change.

Orders Made

  • The confidential transcripts of evidence given to the NSW Crime Commission on 11 September 2024 and 17 September 2024 (with agreed redactions) are to be made available only to the DPP and her delegates directly involved in the prosecution, and to the legal representatives for the accused
  • A copy of those transcripts to be provided to those legal representatives on or before 13 August 2026
  • No copy, photograph, or image of either transcript to be made except by officers or legal representatives of the Commission, or by further order
  • Legal representatives for the accused may discuss and show the transcripts to the accused, but may not provide copies to the accused
  • All legal representatives granted access must retain their own notes of the transcripts in their possession
  • Upon completion of proceedings, or upon any legal representative ceasing to act, all transcripts and notes are to be securely destroyed, with written confirmation provided to the Commission's legal representatives
  • Parties are at liberty to relist the matter if further orders are sought
  • Redactions to be made in accordance with Annexure A to the confidential affidavit of Mr Darren Bennett affirmed 5 August 2026
  • Disclosure of the second witness's evidence (given 24 September 2024) declined under s 45(5), with the decision expressly open to be revisited if the conduct of the trial requires it

Key Takeaways

  • Under s 45(5) of the Crime Commission Act 2012 (NSW), the Court must be satisfied that the interests of justice positively require disclosure of Crime Commission material; it is not enough that disclosure may be useful or convenient.
  • A provisional view on disclosure remains genuinely provisional: where an interested party advances strong and cogent submissions, the Court may depart from its earlier indication before making final orders.
  • The practice of affording interested parties an opportunity to be heard before s 45(5) orders are made, established in R v Qaumi & Ors (No 11) [2016] NSWSC 252, was followed here, with separate listings arranged to protect the identities of the respective witnesses.
  • Factors weighing against disclosure included the compelled nature of a witness's Crime Commission evidence, assurances of limited dissemination given at the time, genuine safety fears, limited relevance to the actual trial issues, and the availability of alternative means of obtaining equivalent information.
  • A decision declining disclosure under s 45(5) is not necessarily final: the Court confirmed it may be revisited if developments during the trial alter the interests-of-justice calculus.

Legislation and Cases Referenced

Legislation
- Crime Commission Act 2012 (NSW), ss 45(4), 45(5)
- Criminal Procedure Act 1986 (NSW), s 143

Cases
- R v Jaghbir (No 1) [2020] NSWSC 762
- R v Noufl; (Section 45 Crime Commission Act) [2026] NSWSC 982
- R v Qaumi & Ors (No 11) [2016] NSWSC 252