Supreme Court New South Wales Medium Neutral Citation: R v Rumsby (No 3) [2023] NSWSC 482 Hearing dates: 26 and 27 April 2023; 5 May 2023 Date of orders: 5 May 2023 Decision date: 05 May 2023 Jurisdiction: Common Law Before: R A Hulme AJ Decision: Suppression and Non-Publication Orders Catchwords: CRIMINAL PROCEDURE – suppression and non-publication orders – application for suppression orders – concealing covert strategy and methods used by undercover police officers – protecting identity of undercover police officers – extending open justice principles as far as possible within legislative constraints – suppression orders granted Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Cases Cited: R v Cowan; Ex parte Attorney-General [2016] 1 Qd R 433; [2015] QCA 87 Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 Category: Procedural rulings Parties: Rex (Crown) Craig Henry Rumsby (Accused) Representation: Counsel: L Carr SC with C Hodgeman (Crown) N Broadbent with Z Alderton (Accused L Chapman (Commissioner of Police) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) Crown Solicitors Office (Commissioner of Police) File Number(s): 234445/2020 JUDGMENT 1. Upon the application of the Commissioner of Police on 26 April 2023, the Court made orders on an interim basis in relation to evidence to be given in this trial of admissions alleged to have been made by the accused in the course of lengthy interaction with persons who were, unknown to him at the time, police officers working undercover. These officers were involved in the execution of what is called an "Undercover Serious Crime Undercover Technique". 2. The existence and use of this investigative strategy by police has been the subject of a number of published judgments and media publicity. A prominent example of the former is Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39. The trial the subject of the conviction appeal in R v Cowan; Ex parte Attorney-General [2016] 1 Qd R 433; [2015] QCA 87 is an example of the latter. 3. The Commissioner does not seek orders in relation to the use of the USCUT strategy itself, or the entirety of the covertly recorded conversations between the accused and the undercover officers. She does seek a suppression order in respect of the decision making pertaining to the strategy and the precise methods used to put it into effect in this particular case. These orders are sought under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground in s 8(1)(a) that they are necessary to prevent prejudice to the proper administration of justice. I accept that this is the appropriate ground for the making of such an order. 4. Orders are also sought to prevent disclosure of anything that might identify the undercover police officers involved and for the court to be closed during the evidence to be given by them and their relevant superiors as well as for the duration of any evidence or discourse that might facilitate their identification. Orders having these effects are sought under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW). 5. The precise orders sought, and which were made on an interim basis, were slightly revised after I expressed concern that a previous formulation would have the effect of the court also being closed during both opening and closing addresses by the parties and during my summing up. The current form of the orders omits the previously sought closure of the court in respect of: [E]vidence/discourse which refers to or details any matter the subject of the Suppression Orders. 1. Counsel for the Commissioner indicated on 26 April 2023 that there was no problem with the Court being open to the public during the course of addresses because the suppression orders proposed will prevent the dissemination of anything said during the course of them that is the subject of the Commissioner's concern. 2. A matter that was first raised on 26 April and was subject to further discussion the following day was whether the Court should be closed during the giving of evidence of the various undercover officers. There were suggestions during the course of discussion of some alternative approaches that might be taken to protect the identity of the officers whilst allowing dissemination of the evidence they are to give. 3. One suggestion was that the media be permitted remote access by audio only to the court during the officers' evidence (and the playing of covert recordings of their conversations with the accused in which the alleged admissions were made). Another was that the covert recordings could be released to the media upon appropriate conditions. Counsel for the Commissioner opposed such steps being taken, but I had difficulty understanding the reasons for this given the lack of objection to the court being open during addresses where the evidence could be discussed as freely as counsel might choose, with the Commissioner's concerns being allayed by the existence of suppression orders. 4. Given the trial would not proceed to the point of any of the undercover officers giving evidence for some weeks I stood the hearing of the application over until today (the end of the second scheduled week of the trial) to allow the parties, and particularly the Commissioner, to give further consideration to the issue. 5. Counsel for the Commissioner has provided further written submissions dated 4 May 2023 which are very helpful. It remains the Commissioner's contention that the interim orders made on 26 April 2023 should be made final. 6. It was submitted that the evidence given by the undercover operatives (and any evidence that may be given by their superiors) should be given in closed Court pursuant to the default position prescribed in s 34 of the Law Enforcement and National Security (Assumed Identities) Act, there being nothing that would satisfy the Court that "the interests of justice otherwise require". 7. The Court's concern was that open justice principles should be given effect so far as that may be possible within the constraints imposed by the legislation. The addresses of counsel will occur in open court in which there will obviously be a need for the evidence of the undercover operatives and the content of the covert recordings of conversations with the accused to be discussed without inhibition. It seemed odd that the Commissioner had no objection to this on the basis that there could be no dissemination of the limited material that is the subject of the suppression orders, which seemed to contrast with the Commissioner's position that the public and the media should be excluded from hearing the evidence itself. 8. Counsel for the Commissioner has today indicated there was no objection to the evidence of the undercover officers (and any evidence that may be given by their superiors) and the content of the covert recordings of conversations with the accused being released publicly, subject to there being redaction of anything caught by the suppression orders. 9. With this concession, it may be accepted now that the interests of justice would not require other than that the evidence be given in closed Court as described above. 10. With the evidence of the undercover officers and the covert recordings, both in transcript form, to be released to the public (and the media) with redaction of material caught by the suppression orders, it would be useful to have input as to the appropriate redactions from the Commissioner. Her counsel has indicated that there will be cooperation in a timely way in this respect and also in providing an explanatory document for the Court's media liaison officer to provide to any interested media representatives. 11. With the issue that concerned the Court having been resolved in this way I now confirm that the orders made on an interim basis on 26 April 2023 are now the final orders made on the Commissioner's application. ********** 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: 19 July 2023