District Court New South Wales Medium Neutral Citation: R v Russell [2022] NSWDC 513 Hearing dates: 16 September 2022 Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1. At the conclusion of these proceedings (including any appeal period), the Offender and any person who is acting, or who has from time to time acted, as his legal representative in this proceeding is: (a) to return any physical copies of material served as part of tranches 1 and 2 of the Brief of Evidence (Brief Material) that are in that person's possession to the Crown Solicitor's Office (sealed in boxes and marked 'Subject to Legal Professional Privilege', to the extent of any such claim), on the undertaking that: i. the Crown Solicitor's Office will secure those materials for a period of five years from the date of these orders, and provide them to the Court if so required at any time during that period; ii. no one in the employ of the Crown Solicitor will open the boxes marked "Subject to Legal Professional Privilege" without order of the Court. (b) to destroy any electronic copies of the material served as part of tranches 1 and 2 of the Brief of Evidence which are in the possession of, or accessible by, that person; (c) to destroy any listening device audio recording served as part of tranche 3 of the Brief of Evidence which is in the possession of, or accessible by, that person. 2. There is to be no use of the Brief Material returned to the Crown Solicitor's Office in compliance with Order 1(a) above except for the purpose of these proceedings or any appeal related to these proceedings. 3. In these orders, Brief Material includes: (a) any material served in the brief of evidence, whether in paper copy or stored electronically on a USB drive or any other form; (b) any note made of any of the contents of any material falling within Order 3(a) above. 4. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, shall be given prior notice in writing, by email to crownsol@cso.nsw.gov.au, of any subpoena or other legal process to be issued in which the true identities of any of the Witnesses referred to in this application may be disclosed. 5. All confidential affidavits and confidential submissions are to be returned to the Crown Solicitor at the conclusion of the hearing of this application on the undertaking that such material will be secured and provided to the Court if later required. 6. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, is promptly to notify in writing the legal representatives who have previously acted for the Offender from time to time in this proceeding of the terms of these orders. Catchwords: CRIMINAL PROCEDURE — Suppression and non-publication orders — Grounds Legislation Cited: Courts Suppression and Non Publication Act 2007 Law Enforcement (Controlled Operations) Act 1997 Cases Cited: Edwards v Avant Insurance Ltd [2020] TASSC 8 Hearne v Street (2008) 235 CLR 125 R v Russell [2022] NSWDC 416 Category: Procedural rulings Parties: Regina (Crown) Levi John Russell (Offender) Representation: Counsel: L Johnston (Commissioner of Police) D McCallum (Offender) Solicitors: Commonwealth Director of Public Prosecutions Crown Solicitor for NSW Sage Solicitors (Offender) File Number(s): 2018/239104 2019/174951 Publication restriction: None Judgment 1. This is a Notice of Motion brought by the Commissioner of Police seeking ancillary orders under the Courts Suppression and Non Publication Act 2007. 2. On 29 July 2022 I made the following orders by consent: 1. In respect to the proposed Crown witnesses who have provided statements which have been served in the Brief of Evidence under the pseudonyms "Witness A", "Witness B" and "Witness C" ("Witnesses"), pursuant to s. 7 of the Court Suppression and Non-publication Orders Act 2010 ("CSNPO"), upon the grounds set out at s 8(1)(a), (c) and (e) of the Act, and, with respect to Witness A and Witness B, pursuant to s 28 of the Law Enforcement (Controlled Operations) Act 1997: 1. the Witnesses be referred to only by their pseudonyms for the purposes of hearing this application, and for all other purposes related to these proceedings; 2. the true identities of the Witnesses be suppressed, together with any evidence, submission, document or information (including any such document or information in the Brief of Evidence) that might facilitate identification of the true identities of any of the Witnesses including any visual or other description or depiction of the physical appearance or other identifying feature of the Witnesses, until further order. 1. Order l(b) above does not preclude the disclosure of the identities of the Witnesses by the Crown to the NSW Director of Public Prosecutions ("NSW DPP") or by the NSW OPP to the Attorney General, for the purposes of facilitating an undertaking pursuant to s 33 of the Criminal Procedure Act 1986 for the purposes of these proceedings. 2. Insofar as order 1 above is made pursuant to the CSNPO, order 1 is to apply throughout the Commonwealth of Australia. 3. Insofar as order 1 above is made pursuant to the CSNPO, order 1 is to apply until further order of the Court or for a period of 65 years (whichever occurs earlier). 1. On 16 September 2022 I delivered judgment sentencing the offender for various drug offences: R v Russell [2022] NSWDC 416. The relevant background of the involvement of the persons identified as Witnesses A, B and C is included in that judgment. The effect of the orders made by consent is to suppress the true identities of Witnesses A, B and C and prevent disclosure of any evidence that may be used to identify them. 2. To provide practical support to the suppression and non-disclosure orders already made, the Commissioner seeks the additional orders requiring the offender's legal representatives to deliver up and/or destroy Brief Material (as defined in the orders sought), on the undertaking that the Crown Solicitor will secure the documents delivered up and not access them and on the basis that the offender's legal professional privilege is maintained in the Brief Material. 3. On this application, the following affidavits were read: 1. Affidavit of Rebecca Morrison affirmed 29 July 2022; 2. Affidavit of Gina Bostick sworn 11 July 2022; and 3. Confidential affidavit of Gina Bostick sworn 11 July 2022 (the confidential affidavit). 1. In addition to the submissions made in Court, I received confidential submissions on the confidential affidavit from the Commissioner. Summary of the open evidence 1. Acting Assistant Commissioner Bostick deposed that: 1. Witnesses A, B and C were civilian participants in controlled operations authorised by the Law Enforcement (Controlled Operations) Act 1997. 2. there is an ongoing risk of physical harm to Witnesses A, B and C and their families if their identities become known to the offender's associates and the wider public. 3. if the police cannot protect people like Witnesses A, B and C that informants will be less likely to co-operate in the future. 1. Ms Morrison deposed that the Brief Material consisted of: 1. tranche 1 of the Brief of Evidence is comprised of 2,279 pages, of which 575 pages contains information that could facilitate the identification of Witnesses A, B or C; and 2. tranche 2 of the Brief of Evidence is comprised of 651 pages, of which 492 pages contains information that could facilitate the identification of Witnesses A, B or C. Submissions of the parties 1. The additional orders are opposed by the offender on the basis that he needs access to the Brief Material to defend proceedings in the New South Wales Crime Commission that are currently being pursued against him and to obtain legal advice as to whether or not he can bring civil proceedings against the State of New South Wales for a fire in his business premises, alleged to have been caused by the placement of listening devices. 2. The Commissioner submitted that the additional orders were necessary to give effect to the suppression orders that had been made by consent and that the reasons why the offender seeks to retain the Brief Material are collateral purposes and thereby impermissible: Hearne v Street (2008) 235 CLR 125 as applied to criminal proceedings in Edwards v Avant Insurance Ltd [2020] TASSC 8. Consideration 1. The purpose of the additional orders is not to keep the identity of Witnesses A, B and C from the offender. Those persons were well known to him. The intent is to prevent the disclosure of their identities from the offender's associates and the wider public so as to protect them from harm. 2. There are many documents in the Brief Material that contain information that could be used to identify the witnesses. I am satisfied on the basis of the confidential evidence that there are good reasons to make the unusual orders sought by the Commissioner to remove that material from circulation to ensure the protection of Witnesses A, B and C and that the orders sought give practical effect to the orders that I have already made. 3. I am satisfied that the orders sought by the Commissioner reasonably protect the offender's legal professional privilege in the Brief Material, that was created by his legal representatives. 4. I will make the orders on the understanding that the offender's present legal representatives are only required to deliver up or destroy the Brief Material in their possession. The orders do not oblige them to obtain possession of any Brief Material that may be in the possession of any legal representative that has previously represented the offender. The Commissioner is at liberty to serve the orders on any of the offender's formal legal representatives if she chooses to do so. 5. In the event that the offender needs access to the Brief Material to conduct the Crime Commission proceedings, the Crime Commission has the necessary powers to provide the material in an appropriate format bearing in mind the need to protect the identity of Witnesses A, B and C. 6. Similarly, the information needed to advise on the proposed civil action is of relatively narrow compass. The offender can bring a preliminary discovery application and get access to the necessary information on appropriate terms, if a Court is satisfied that he has a potential action. Orders 1. The orders I make are as follows: 1. At the conclusion of these proceedings (including any appeal period), the Offender and any person who is acting, or who has from time to time acted, as his legal representative in this proceeding is: 1. to return any physical copies of material served as part of tranches 1 and 2 of the Brief of Evidence (Brief Material) that are in that person's possession to the Crown Solicitor's Office (sealed in boxes and marked "Subject to Legal Professional Privilege", to the extent of any such claim), on the undertaking that: 1. the Crown Solicitor's Office will secure those materials for a period of five years from the date of these orders, and provide them to the Court if so required at any time during that period; 2. no one in the employ of the Crown Solicitor will open the boxes marked "Subject to Legal Professional Privilege" without order of the Court. 1. to destroy any electronic copies of the material served as part of tranches 1 and 2 of the Brief of Evidence which are in the possession of, or accessible by, that person; 2. to destroy any listening device audio recording served as part of tranche 3 of the Brief of Evidence which is in the possession of, or accessible by, that person. 1. There is to be no use of the Brief Material returned to the Crown Solicitor's Office in compliance with Order 1(a) above except for the purpose of these proceedings or any appeal related to these proceedings. 2. In these orders, Brief Material includes: 1. any material served in the Brief of Evidence, whether in paper copy or stored electronically on a USB drive or any other form; 2. any note made of any of the contents of any material falling within Order 3(a) above. 1. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, shall be given prior notice in writing by email to crownsol@cso.nsw.gov.au, of any subpoena or other legal process to be issued in which the true identities of any of the Witnesses referred to in this application may be disclosed. 2. All confidential affidavits and confidential submissions are to be returned to the Crown Solicitor at the conclusion of the hearing of this application on the undertaking that such material will be secured and provided to the Court if later required. 3. The solicitor in the office of the New South Wales Crown Solicitor with carriage of these matters on behalf of the Commissioner of Police, is promptly to notify in writing the legal representatives who have previously acted for the Offender from time to time in this proceeding of the terms of these orders. The Court Notes that: 1. The Offender does not waive any claim of legal professional privilege in any material returned to the Crown Solicitor's Office in sealed boxes which are marked "Subject to Legal Professional Privilege" in accordance with Order 1(a) above by complying with that 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: 27 October 2022