Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v D110 [2022] NSWSC 1430 Hearing dates: 17 October 2022 Date of orders: 17 October 2022 Decision date: 17 October 2022 Jurisdiction: Common Law Before: Lonergan J Decision: Application for leave under s 35A of the Crime Commission Act 2012 (NSW) to take evidence from an accused person in relation to the subject matter of an offence with which that person is charged is granted. Catchwords: CRIME – Crime Commission Act 2012 (NSW) s 35A – application for leave to examine an accused person Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Crime Commission Act 2012 (NSW) Crimes Act 1900 (NSW) Cases Cited: D151 and others v New South Wales Crime Commission [2017] NSWCA 143 Lee v The Queen [2014] HCA 20 (2014) 253 CLR 455 NSW Crime Commission v D109 [2015] NSWSC 1244 X7 v Australian Crime Commission [2013] HCA 29 (2013) 248 CLR 92 Category: Procedural rulings Parties: New South Wales Crime Commission (Plaintiff) D110 (Defendant) Representation: Counsel: Solicitors: New South Wales Crime Commission (Plaintiff) No appearance (Defendant) File Number(s): 2022/00309415 Publication restriction: Suppression and Non-publication orders in place revised extempore JUDGMENT 1. Before me today as duty judge is a summons brought ex-parte for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) to take evidence from a person accused of an offence about subject matter which may well traverse or cover information or material closely associated with the offence for which he has been charged. 2. Today I have granted leave for the summons to be filed in Court and ordered that the application be heard ex-parte. Mr Dunston appeared on behalf of the Crime Commission. I also made an order that the application be heard in closed court as requested in the summons. I am satisfied that it is appropriate to do so given the subject matter of the application and the need for non-disclosure and non-publication orders to which I will come shortly. 3. The summons filed in Court was supported by an affidavit affirmed by an officer of the Commission on 14 October 2022. The summons sought an order that the proceedings be heard instanter, and an order that they be heard in-camera. In addition, non-disclosure and non-publication orders were sought pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) in respect of (a), the summons, (b), the name of the defendant, (c), the evidence filed in support of the summons, and (d), any transcript of the hearing of the summons, subject to the requirements of subs 35A(8) of the Crime Commission Act except for (e), the proper execution of the orders of the Court, and (f), the proper processes of the New South Wales Crime Commission in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons, and (g), disclosure of material necessary for the prosecution of the defendant (referred to by the pseudonym "D110") for any offences the defendant may be charged with under this Act. 4. I will make those non-disclosure and non-publication orders in accordance with s 7 of the Court Suppression and Non-Publication Orders Act upon the grounds specified in s 8(1)(a), (c) and (e) of that Act. I am satisfied that those orders are necessary. As part of those suppression orders, I accept that it is appropriate for the defendant to be identified by a pseudonym, and I formally order that the defendant be referred to as "D110". 5. The provisions of s 35A are contained within Div 6 of the Act titled "Evidence of Accused Persons". Section 35A is in the following terms: Division 6A Evidence of accused persons 35A Leave of Supreme Court to take evidence from accused person about the offence (1) This section applies to a person who is the subject of a current charge for an offence, and relates to the taking of evidence from the person in relation to the subject matter of the offence. (2) The person cannot be— (a) questioned under section 24 at a hearing before the Commission, or (b) required under section 24 or 29 to produce a document or thing, in relation to matters relating to the subject matter of the offence without the leave of the Supreme Court. (3) Evidence obtained pursuant to leave granted for the purposes of this section cannot be used against the person in any civil or criminal proceeding (other than a proceeding for an offence against this Act or an offence relating to the falsity of evidence given by the witness) or in any disciplinary proceeding, but is not inadmissible as against other persons. (4) The Commission may apply to the Supreme Court ex parte for leave supported by an affidavit of an officer of the Commission stating— (a) that the officer— (i) believes that the questioning or requirement is in the public interest notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offence, and (ii) suspects that the questioning or requirement is necessary to fully investigate the matter referred to in the copy of a notice accompanying a summons issued to the person, and (b) the grounds on which the belief and suspicion are based. (5) The Supreme Court may grant leave if it is satisfied that any prejudicial effect that is likely to arise to the person's trial from the proposed questioning or requirement is outweighed by the public interest in using the Commission's powers to ensure that a matter referred to in the copy of a notice accompanying a summons issued to the person is fully investigated. (6) Leave may be granted unconditionally or subject to conditions imposed by the Supreme Court. (7) If leave is granted, the Commission must, before the person is questioned in relation to matters the subject of the grant of leave, serve on the person notice of the grant of leave. (8) The notice must inform the person of any right under another law to seek a review of the grant of leave and of the right to make an application for assistance under section 42. (9) Nothing in this section limits the application to an application for leave of any of the functions and procedures of the Supreme Court in relation to proceedings that may be dealt with ex parte before that Court. 1. When initially enacted (in response to the decisions of the High Court in X7 v Australian Crime Commission [2013] HCA 29 (2013) 248 CLR 92 ("X7") and Lee v The Queen [2014] HCA 20 (2014) 253 CLR 455) ("Lee")), the nature and purpose of the provision was considered by a number of my judicial colleagues. The judgment of McCallum J (as she then was) in NSW Crime Commission v D109 [2015] NSWSC 1244 sets out a helpful analysis of the provisions constituting s 35A with a discussion of the tasks required of this Court on such an application. Her Honour observed at [24] of her judgment: "[24] Section 35A(5) poses two tasks. The first is to consider whether I am satisfied that any prejudicial effect that is likely to arise to the defendant's trial from the proposed questioning or requirement to produce a document or thing is outweighed by the public interest in the using the Commission's powers to ensure that the matter in question is fully investigated. If I am not satisfied in those terms, there is no power to grant the leave sought. The second task is, if satisfied in those terms, to consider whether to exercise the discretion to grant leave. That discretion must be exercised judicially having regard to the objects of the Act." 1. The object of the Crime Commission Act is set out in s 3 and is "to reduce the incidence of organised and other serious crime". 2. McCallum J noted and discussed in her judgment other new provisions in the Act with a focus on what is, in effect, tiers of protection for people being questioned under s 35A. 3. It appears over the years since then, conditions attached to grants of leave under s 35A have been imposed by other judges of this Court, and it seems such conditions have been considered and added to the orders sought today in this particular application, all directed to protections to the defendant in the context of the questioning proposed, and that questioning's potential effect, in the absence of such protections, on his criminal charge which is yet to be heard and currently next listed before the District Court at Parramatta on 20 October 2022. 4. Section 35A(2) is in effect a prohibition, upon a person who is the subject of a current charge for an offence, being questioned under s 24 of the Act at a hearing before the Commission or being required to produce a document or thing under s 24 or s 29 in relation to matters relating to the subject matter of the offence, without the leave of the Court. (This defendant has been charged with knowingly deal with proceeds of crime in contravention of s 193B of the Crimes Act 1900 (NSW)). 5. The Commission is entitled under s 35A(4) to apply to the Supreme Court ex-parte for leave under s 35A(2) where the application is supported by an affidavit of an officer of the Commission stating that he or she holds a requisite belief and suspicion as to the matters referred to in s 35A(4)(a)(i) and (ii), and which also states the grounds on which belief and suspicion are based. 6. In the detailed supporting affidavit to the application made in the present proceedings the Commission's authorised officer has stated that he holds a belief that the questioning of the defendant is in the public interest, notwithstanding the questioning or a requirement to produce documents or things pursuant to s 24 and/or s 29 of the Act in the public interest relates or may relate to the subject matter of the offence with which he has been charged. He also deposes to his suspicion that the questioning of the defendant or the requiring of him to produce document(s) or thing(s) is necessary to fully investigate the matter referred to in the affidavit and the notice under s 51(1)(a) of the Act, a copy of which was annexed to the affidavit filed in Court with the summons, which as I understand it, will be served upon the defendant in conformity with the requirements of s 34A(5). 7. The supporting affidavit also sets out the grounds on which the Commission's officer's belief and suspicion (in terms of s 35A(4)(a)(i) and (ii)) are based both in the narrative provided by the officer in the affidavit, and in the supporting documentation appended to that affidavit. For the purposes of this application, I do not need to refer to that material in detail other than to indicate that I am satisfied the material provides a proper basis for the belief and suspicion. The affidavit also addresses safeguards and precautions the Commission has adopted or will have in place to prevent access to evidence obtained at the Commission's hearing. 8. This application for leave to examine should be granted if I am satisfied that any prejudicial effect that is likely to arise to the defendant's trial from the proposed questioning or requirement to produce document(s) or thing(s) is outweighed by the public interest in using the Commission's powers to ensure that the matter referred to in the notice accompanying the summons issued to the defendant is fully investigated. 9. Any grant of leave requires consideration as to whether this leave should be granted on an unconditional basis or made subject to conditions imposed by the Court. 10. When considering an application for the grant of leave of this nature, it is necessary for this Court to bear in mind the fact that it is being asked to exercise a significant power ex-parte. The significance of it of course, at least in part, lies in the fact that the provisions of s 35A(5) provide for the grant of leave to the Commission to, amongst other things, question a person facing a criminal charge or potentially in relation to the subject matter of the charge. 11. As Hayne and Bell JJ observed in X7 at [85] "… permitting the Executive to ask and compelling answers to questions about the subject matter of a pending charge regardless of what use may be made of those answers at the trial of an accused person fundamentally alters the process of criminal justice. It is that observation which is critical to the question of statutory construction which must be answered in this case". As observed by Simpson JA (as she then was) in the decision of D151 and others v New South Wales Crime Commission [2017] NSWCA 143 at [105], when commenting on X7 in the context of the later decision of the majority in Lee: "… Although there is some tension between X7 and Lee, X7 has not been overruled and stands as authority for the proposition stated." 1. In an application for grant of leave under s 35A, the following matters arise first, the supporting affidavit of the authorised officer must establish that he or she holds the requisite state of belief and suspicion, and the grounds for such belief and suspicion must be stated as required under s 35A(4)(b) as I have noted. Those requirements have been met. 2. Second, in order for the Court to be satisfied of those matters, it needs to assess the question of prejudicial effect as referred to in s 35A(5), the question of the public interest in the use of the Commission's powers in order to ensure that a matter referred to in the application is fully investigated, and third, whether the public interest outweighs any prejudicial effect that is likely to arise to the person's trial from the proposed questioning or requirement to produce documents or things. 3. Third, in undertaking the assessment and in making the determination, it is clear that this Court must examine and evaluate whether the supporting affidavit establishes the matters required, and in particular, the grounds on which the officer's stated belief and suspicion are based. 4. Fourth, given the importance of the grounds upon which those suspicions and beliefs are based to the making of the decision of this Court, it is necessary that the supporting affidavit discloses the existence of facts relevant to the grounds relied upon as supporting those relevant states of mind in the authorised officer. 5. I am content that the material referred to does, and as I have mentioned, it is not in my view appropriate nor necessary to set out that subject matter other than to note I have read it, and take the view that it appropriately details relevant matters, and well supports the stated belief and suspicion. 6. I am satisfied that any prejudicial effect that is likely to arise to the defendant's trial in relation to his charge from any proposed questioning or requirement to produce document(s) or thing(s), is outweighed by the public interest in using the Commission's powers to ensure that a matter referred to in the copy of the notice accompanying the summons issued to the defendant is fully investigated. 7. In terms of my discretion to grant or refuse such leave, I have decided that on the evidence, the power to grant leave pursuant to s 35A(5) should be exercised on the bases set out in the form of order filed in Court today, 17 October 2022, which I have signed and sealed and dated today's date, and orders will be made in accordance with that form of Order. ********** 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: 20 October 2022