Supreme Court New South Wales Medium Neutral Citation: R v Spinks; NSW Crime Commission v Spinks [2020] NSWSC 1708 Hearing dates: 9 October 2020 Date of orders: 9 October 2020 Decision date: 09 October 2020 Jurisdiction: Common Law Before: Hamill J Decision: See [9]. Catchwords: CRIMINAL LAW - Crime Commission examinations - where witnesses advised examinations would not be disclosed - where material relevant to murder trial - whether transcripts should be produced to the court Legislation Cited: Crime Commission Act 2012 (NSW), s 45 Category: Procedural rulings Parties: Regina Matthew Henry Spinks NSW Crime Commission Representation: Counsel: D Scully (Crown) J Manuell SC (Spinks) R Bhalla (Crime Commission) Solicitors: Solicitor for the NSW DPP (Crown) Legal Aid (Spinks) Crown Solicitor's Office (Crime Commission) File Number(s): 2018/215162 Publication restriction: Nil Ex TEMPORE Judgment (REVISED) 1. This is a notice of motion by the Director of Public Prosecutions for orders pursuant to, at this stage, s 45(4) of the Crime Commission Act 2012 (NSW). The prosecution seeks to have the Crime Commission produce to the Court transcripts of what I gather are two examinations each in respect of two witnesses. Those witnesses are, as I am informed, people who have made statements or have been subject to investigation by the New South Wales Police in relation to a drive-by shooting murder in which a Nathan Costello was killed and subsequently Matthew Spinks was charged with murder. 2. I have before me, on today's notice of motion, an affidavit of the solicitor instructing on behalf of the Director, along with a volume of material annexed to that affidavit, which includes various statements, SMS communications, listening devices and s 45(1) specifications by the Crime Commission. This material summarises in very brief terms evidence that was given in the Crime Commission which would, at least on its face, appear to have some relevance and pertinence to both the prosecution case generally, material relevant to the conduct of the accused's case and specifically perhaps in relation to the two witnesses to which I have referred. 3. The question at this stage is whether the provisions of s 45(4) of the Crime Commission Act are satisfied. That subsection requires there to be two matters satisfied and then provides to the Court a discretion, indicated by the use of the term "may". Section 45(4) is in the following terms: (4) If: (a) a person has been charged with an offence before a court of the State, and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor, the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court. 1. Subsection (a) requires that a person be charged with an offence before a Court of the State. That is clearly the case. Mr Spinks has been charged with murder and his trial is listed to commence in Wollongong in February next year before me. Indeed, it was listed earlier this year, but due to the COVID-19 pandemic the trial date was vacated. 2. Second, is the matter of judgment. It involves the Court considering whether it "may be desirable" in the interests of justice that particular evidence given before the Commission, in relation to which the Commissioner has given a direction under this section, be made available to the person or to a legal practitioner representing a person and to the Prosecutor. The Court then has the discretion to decide whether to give the Commissioner a certificate. If it does so the Commission is required to provide the evidence to the Court. 3. Nothing in any decision I make today results in any material being provided to the parties. Rather it enables the material to be provided to the Court in order that a determination can then be made no doubt with the assistance of submissions from all interested parties, including perhaps the witnesses themselves, as to whether an order under subs (5) would be made. Subsection (5) provides the Court with a much more stringent test before making available to the parties material that was given in circumstances where the Commission made directions and informed the witnesses that their evidence would not be published. 4. I do not need to worry about the test in s 45(5) of the Crime Commission Act today. The parties to the trial and the Commission do not oppose the making of an order under s 45(4) and my conclusion is that it may be desirable in the interests of justice that the evidence be produced to the Court in order to see what happens next and really the sooner that happens the better, given the trial date is not that far away. 5. For those brief reasons, I will make orders in accordance with prayers 2 and 3 of the prosecution's notice of motion. 6. Accordingly, the Court makes the following orders: 1. That pursuant to section 45(4) of the Crime Commission Act 2012 (NSW) the transcript of Witness A's evidence before the New South Wales Crime Commission ("NSWCC") on 21 March 2019, referred to in the NSWCC s 45(1) specification dated 18 March 2020, be provided by the NSWCC to the Court. 2. That pursuant to section 45(4) of the Act the transcript of Witness B's evidence before the NSWCC on 1 August 2019, referred to in NSWCC s 45(1) specification dated 18 March 2020, be provided by the NSWCC to the Court. 3. There is to be a non-publication over the names of Witness A and Witness B pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW). This order is made on an interim basis. 1. Final orders will be made as soon as convenient, which will no doubt be after I have inspected the material and there has been a further hearing. At this stage there is to be no publication of the names of the witnesses. ********** Amendments 22 February 2021 - Redactions removed due to revocation of NPO. 26 February 2021 - Appropriate redactions made. 26 February 2021 - Amended name of Counsel on coversheet. 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: 26 February 2021