New South Wales Crime Commission v D112 [2023] NSWSC 738

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v D112 [2023] NSWSC 738 Hearing dates: 29 June 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Common Law Before: Davies J Decision: THE COURT ORDERS THAT 1. Until further order of this Court, pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) (the "CSNPA") and upon the grounds set out in sections 8(1)(a), (c) and (e) of the CSNPA, there is to be no disclosure or publication of: 1.1. the summons; 1.2. the name of the defendant (subject to further orders); 1.3. the evidence filed in support of the summons; and 1.4. any transcript of the hearing of this matter, subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) (the "Act") and except for: 1.5. the proper execution of the orders of the Court; and 1.6. the proper processes of the New South Wales Crime Commission ('the Commission') in pursuing its investigation pursuant to the Act as disclosed in evidence filed in support of the summons. 1.7. disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D112 for any offences the defendant may be charged with under the Act. 2. Order 1 is to have effect throughout the Commonwealth. 3. The defendant be referred to by the pseudonym D112. 4. Leave is granted pursuant to section 35A of the Act to the Plaintiff, its officers and legal practitioners engaged or employed by it, to: 4.1. question D112 at a hearing under section 24 of the Act; and 4.2. require D112 to produce a document or thing pursuant to section 24 or section 29 of the Act; in relation to the subject matter of the offences D112 is currently charged with, namely: 4.3. 3 counts of procure sexual act by false pretence, pursuant to 218(1)(b) of the Criminal Code Act 1899 (Qld) (the Qld Code); 4.4. rape pursuant to section 349 of the Qld Code; and 4.5. procure sexual act by false pretence, pursuant to 218(1)(b) of the Qld Code. 5. An order that, upon the defendant no longer being the subject of the charge identified in paragraph 4, orders 1.2 and 3 be vacated. 6. This leave is granted subject to the following conditions: 6.1. D112 is informed, before they give evidence in the proposed hearing, of section 45A of the Act and its effect, and be afforded an opportunity to obtain legal advice in respect of that section; in particular, D112's right to object to providing evidence. 6.2. The Commission maintains a record of all persons to whom the evidence of or a record of any of the evidence D112 has been disclosed. 6.3. The Commission takes steps to ensure that the investigators involved in D112's arrest and who are still involved in ongoing inquiries relevant to the prosecution of D112 for the offences set out in paragraph 4 do not have access to the evidence obtained at the proposed hearing. 6.4. Upon request by D112 or by any legal representative instructed by D112, the Commission will provide written certification that conditions 6.2 and 6.3 have been complied with. 6.5. The electronic document library relevant to the hearing process concerning D112 has been and will remain quarantined from the police officers investigating or involved in the prosecution of D112 for the offences set out in paragraph 4 and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to those officers. THE COURT NOTES THAT Upon the giving of an undertaking by the Commission that it will safely store the evidence filed in support of this summons and shall deal with that evidence in accordance with any future direction of the Court (the giving of which undertaking by the Commission's solicitor being noted), the evidence filed in support of this summons be returned to the Commission for storage. Catchwords: CRIMINAL LAW – procedure – investigation – application under s 35A Crime Commission Act 2012 to examine accused person concerning charged offences – where charged offences in a state outside New South Wales – whether s 35A applicable - public interest – prejudicial effect – whether supporting evidence establishes requisite belief and suspicion –conditions to minimise prejudice to accused person Legislation Cited: Court Suppression and Non−Publication Act 2010 (NSW) Crime Commission Act 2012 (NSW) Queensland Criminal Code Act 1899 (Qld) Cases Cited: D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143 New South Wales Crime Commission v D181 [2015] NSWSC 1836 Texts Cited: Nil Category: Procedural rulings Parties: New South Wales Crime Commission (Plaintiff) D112 (Defendant) Representation: Counsel: B Dunstan - Ex parte (Plaintiff)