Supreme Court New South Wales Medium Neutral Citation: NSW Crime Commission v D101 [2020] NSWSC 809 Hearing dates: 23 June 2020 Decision date: 26 June 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) The Court vacates orders 3(1)(b) and 4 of the orders made on 28 April 2016 in these proceedings. (2) The Court notes: (a) the defendant is no longer the subject of the charges which necessitated the Commission's application for leave pursuant to s 35A of the Crime Commission Act 2012; (b) the orders sought to be vacated relate to the suppression and non-publication of the identity of the defendant and the use of a pseudonym for the defendant; (c) when the Commission took evidence from the defendant in exercise of its powers under s 24 of the Crime Commission Act 2012, the Commission issued non-publication directions in accordance with s 45 of the Crime Commission Act 2012, to the following effect: (i) that any evidence given by the defendant before the Commission; (ii) the contents of any document or description of any thing produced by the defendant during the hearing, or as a result of the hearing; and (iii) any information that might enable the defendant to be identified as a person who has given evidence, or may be about to give evidence to the Commission, or might enable the defendant to be identified or located, must not be published except in such manner and to such persons as the Commission specifies; and (d) These non-publication directions remain in effect. Catchwords: CRIME — Crime Commission — variation of non-disclosure orders — investigative agencies' duty of disclosure Legislation Cited: Crime Commission Act 2012 (NSW), ss 24, 29, 35A, 45 Criminal Procedure Act 1986 (NSW) Cases Cited: 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 D101 [2016] NSWSC 548 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 Texts Cited: Commonwealth Director of Public Prosecutions, Statement on Disclosure in Prosecutions Conducted by the Commonwealth (March 2017) Category: Procedural and other rulings Parties: NSW Crime Commission (Plaintiff) D101 (Defendant) Representation: Counsel: R Bhalla (Plaintiff) No appearance for the Defendant (application heard ex parte) Solicitors: Crown Solicitor's Office (Plaintiff) File Number(s): 2016/130386 Publication restriction: Non-publication of any information or material that may lead to the identification of the defendant (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7) Judgment Introduction 1. By notice of motion filed in Court on 23 June 2020, the plaintiff, the New South Wales Crime Commission (the Commission) seeks a vacation of orders made by this Court (Davies J) on 28 April 2016 in respect of the defendant, D101. D101 is presently subject to a non-publication direction in respect of his or her name made by the Commission under s 45 of the Crime Commission Act 2012 (NSW) (the Act). 2. The Commission also sought an order that the court be closed for the hearing of the notice of motion. I made that order on 23 June 2020 before the commencement of the hearing of the motion as I was satisfied, having regard to the orders sought and the contents of the affidavit of Timothy O'Connor affirmed 17 June 2020, that this course was necessary to protect the safety of D101. Factual background 1. Before addressing the question whether it is appropriate to vacate the orders previously made, it is necessary to summarise the context in which the application is made. 2. The Commission commenced the proceedings by filing a summons on 28 April 2016 for orders including an order under s 35A of the Act. Section 35A provides that a person who is the subject of a current charge cannot be questioned by, or required to produce any document or thing to, the Commission. At that time, D101 had been charged with an offence or offences. The application was heard ex parte by Davies J, as duty judge. 3. At the conclusion of the hearing on 28 April 2016, Davies J granted leave to the Commission to question D101 and made orders which included the following: Order 3(1) Until further order of this Court, pursuant to s 7 of the Court Suppression and Non-Publication Act 2010, and upon the grounds set out in s 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of: … b. the name of the defendant … Order 4 Order that the defendant be referred to by the pseudonym D101. 1. His Honour published reasons for decision on 6 May 2016: New South Wales Crime Commission v D101 [2016] NSWSC 548. 2. Following the grant of leave by Davies J, the Commission issued a non-publication direction pursuant to s 45 of the Act which covered any evidence given by D101 to the Commission, the contents of any document or description of anything produced by D101 to the Commission either during or as a consequence of the hearing and any information that might enable D101 to be identified as a person who has given evidence or may be about to give evidence to the Commission or which might enable D101 to be identified or located. 3. The Commission took evidence from D101 on three separate days in May and June 2016. 4. In August 2019, D101 was acquitted of the charges which had been pending at the time the Commission had commenced these proceedings. As the charges have been finally dealt with, D101 is, in effect, in the position of a mere witness who has been compelled to give evidence before the Commission. Relevant legislative provisions 1. The Commission is empowered by s 24 of the Act to summon witnesses and take evidence from them. By s 29, the Commission may obtain the attendance of any person or the production of any document or thing by notice. 2. Section 35A of the Act provides that a person who is the subject of a current charge cannot be questioned by the Commission or required to produce a document or thing to the Commission without the leave of this Court. 3. Section 45 of the Act confers power on the Commission to direct that any evidence given before it, any document or thing produced to it or seized by it, the fact that a person has given or is about to give evidence before it, or any information tending to identify such person not be published or must not be published except in the manner and to such persons as the Commission specifies. Consideration 1. Mr O'Connor deposed that he believes that D101's evidence to the Commission may be relevant to prosecutions of other persons. In these circumstances, he considered that the Commission, as an investigative body, would be required to disclose facts and information about this evidence to the Commonwealth Director of Public Prosecutions (the DPP), being the relevant prosecuting body. Mr O'Connor deposed that the Commission wants to disclose to the DPP (pursuant to its duty to do so) D101's identity; the fact that D101 attended before the Commission on certain specified dates and gave evidence pursuant to leave granted by this Court under s 35A of the Act; that a transcript of D101's evidence was made and a brief summary of that evidence. 2. Mr O'Connor has identified the criminal trials of two accused persons which are listed for hearing in the District Court later this year and next year respectively. Unless order 3(1)(b) and order 4 are vacated, the Commission is prohibited from making these disclosures to the DPP. For this reason, the Commission seeks that the orders be vacated to permit it to comply with its duty of disclosure to the DPP. I am informed by Mr Bhalla, who appeared on behalf of the Commission, that this is the sole reason for the Commission's application to vacate these orders. 3. The DPP owes a duty to disclose material in its possession and information of which it is aware to an accused person. The duty of disclosure extends to documents and information which, on a sensible appraisal by the prosecution, first, can be seen to be relevant, or possibly relevant to an issue in the case; secondly, which raise, or possibly raise, a new issue, which is not presently apparent from the prosecution case; or, third, to hold out a real prospect of providing a lead on evidence which would fall into one or other of the first two categories: R v Keane [1994] 1 WLR 746, approved in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [48] and [54] (Hodgson JA), which was approved in Cornwell v R [2010] NSWCCA 59 at [210] (McClellan CJ at CL, Simpson and Johnson JJ agreeing). 4. For the purposes of this duty of disclosure, agencies such as the Commission are obliged to inform the DPP of the existence of material which must be disclosed to the defence, including material in the hands of the agency, there being no distinction in this context between what is known or in the possession of the DPP and what is known or in the possession of the agency: R v Farquharson (2009) 26 VR 410; [2009] VSCA 307 at [212]. The Statement on Disclosure in Prosecutions (March 2017) issued by the DPP states: "5. A precondition for prosecution disclosure is that the material is in the possession of, or the information is known by, the prosecution. For the purposes of this disclosure policy and at common law there is no distinction between the prosecuting agency and the investigative agency. The courts generally regard the investigative agency and the prosecuting agency as 'the prosecution'. Consequently, the CDPP [Commonwealth Director of Public Prosecutions] largely depends on the investigative agency to inform it of the existence of material which should be disclosed to the defence, whether the investigative agency holds it or is aware it is held by a third party including a Commonwealth, State or Territory agency, private entity or individual. 6. If a matter involves investigation by more than one agency, the CDPP depends on the investigative agency which refers the brief to inform the CDPP of all disclosable material which any of the agencies involved hold or are aware of. 7. The CDPP is available to assist and work with agencies in discharging the Prosecution's duty of disclosure." 1. The duty is also contained in Division 3 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 (NSW) which sets out the disclosure requirements for proceedings on indictment. 2. The importance placed by the law on the duty of disclosure is evident from the consequences of its breach. A prosecutor's failure to comply with the duty of disclosure which is exposed pre-trial can lead to an adjournment of the trial or a stay of the proceedings: Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh); [1992] HCA 57. If the accused has been convicted after trial, a failure to comply with the duty of disclosure can lead to the quashing of the conviction: Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 at [18] and [23] (Gleeson CJ, Gummow and Callinan JJ); Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68. 3. As this application has been heard in closed court and ex parte, it is necessary for me to satisfy myself that there will be no detriment to D101 from the disclosure and that it is not necessary to hear from D101 before making the orders sought. Mr Bhalla informed me that the Commission intended that its non-publication direction pursuant to s 45 of the Act in respect of D101 remain in effect subject to a variation to permit the proposed disclosure to the DPP. Mr Bhalla has assured me, and I accept, that if there is to be disclosure of the Commission's material beyond the DPP, D101 will have an opportunity to be heard. I am persuaded that the effect of the orders sought, if made, would be to return D101 to the category of an involuntary informant witness before the Commission. I also accept that the Commission could have sought, when it applied for the orders from Davies J, an exception to permit it to disclose these matters to the DPP. I can discern no reason why this Court would not have made provision for such an exception, had it been sought. Conclusion 1. If the Commission were not to disclose material information to the DPP in relation to the pending trials, there would be a risk that the trials would not be fair and that any conviction resulting from those trials could be set aside on that basis. For this reason, I am satisfied that it is necessary to vacate orders 3(1)(b) and 4 of the orders made by Davies J to permit the Commission to comply with its duty of disclosure to the DPP, with a view to the DPP, in turn, complying with its duty of disclosure to the accused persons in the pending trials. For the reasons given above, I am satisfied that there is no relevant prejudice arising from these orders which would warrant my hearing from D101. Orders and notations 1. For the reasons given above I make the following orders and notations: Orders 1. The Court vacates orders 3(1)(b) and 4 of the orders made on 28 April 2016 in these proceedings. Notation 1. The Court notes: 1. the defendant is no longer the subject of the charges which necessitated the Commission's application for leave pursuant to s 35A of the Crime Commission Act 2012; 2. the orders sought to be vacated relate to the suppression and non-publication of the identity of the defendant and the use of a pseudonym for the defendant; 3. when the Commission took evidence from the defendant in exercise of its powers under s 24 of the Crime Commission Act 2012, the Commission issued non-publication directions in accordance with s 45 of the Crime Commission Act 2012, to the following effect: 1. that any evidence given by the defendant before the Commission; 2. the contents of any document or description of any thing produced by the defendant during the hearing, or as a result of the hearing; and 3. any information that might enable the defendant to be identified as a person who has given evidence, or may be about to give evidence to the Commission, or might enable the defendant to be identified or located, must not be published except in such manner and to such persons as the Commission specifies; and 1. These non-publication directions remain in effect. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2020