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) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff) File Number(s): 2023/208318 Publication restriction: Nil Judgment 1. The New South Wales Crime Commission, by way of a summons, has brought an ex parte application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 (NSW) to take evidence from a person accused of offences about those offences. 2. The summons is supported by an affidavit of an officer of the Commission sworn on 28 June 2023. The summons seeks an order that the proceedings be heard instanter, together with an order that the proceedings be heard in camera. 3. In addition, the summons seeks non-disclosure and non-publication orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of: 1. the summons; 2. the name of the defendant; 3. the evidence relied on in support of the summons; 4. any transcript of the hearing of the summons, subject to the requirements of s 35A(8) of the Crime Commission Act and, except for 1. the proper execution of the orders of the Court; 2. the proper processes of the Crime Commission in pursuing its investigation pursuant to the Act as disclosed in evidence relied on in support of the summons; and 3. disclosure of material necessary for the prosecution of the defendant who is referred to by the pseudonym "D110" for offences under the Act, and any bail application made on behalf of the defendant. 1. Section 35A of the Crime Commission Act provides: 5A 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. Note - See section 39A (3) and (4) for derivative evidence. (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. Applications under s 35A have been the subject of a number of judgments of single judges of the Court, as well as the judgment of the Court of Appeal in D151, D152, D154 v New South Wales Crime Commission (2017) 94 NSWLR 738; [2017] NSWCA 143. 2. The Court of Appeal's judgment determined inter alia that s 35A was not invalid as contravening ch 3 and s 80 of the Constitution of the Commonwealth. It is also otherwise relevant in the circumstances of the present application to which I will return. 3. In New South Wales Crime Commission v D181 [2015] NSWSC 1836, Hall J said this concerning the approach to be taken to an application under s 35A: [20] In an application for a grant of leave under s 35A, in my opinion the following matters arise: (1) The supporting affidavit of the authorised officer must establish that he or she holds the requisite state of belief and suspicion referred to in s 35A(4)(a)(i) and (ii) and the grounds for such belief and suspicion are stated in accordance with s 35A(4)(b). Those requirements, as I have stated, were met in this application. (2) In order for the Supreme Court to be "satisfied" of the matters referred to in s 35A(5), the Court is required to assess: (a) Firstly, the question of "prejudicial effect" as referred to in s 35A(5). (b) Secondly, the question of the "public interest" in the use of the Commission's powers in order to ensure that a matter therein referred to is "fully investigated". (c) Thirdly, whether the "public interest" referred to in s 35A(5) outweighs any "prejudicial effect" that is likely to arise to the person's trial from the proposed questioning or requirement. (3) In undertaking the assessment referred to in 2(a) and (b) and in making the determination referred to in 2(c) above it is clear that the Court is required to examine and evaluate whether the supporting affidavit establishes the matters to which s 35A refer including, in particular, the "grounds" on which the officer's stated belief and suspicion are based. (4) Given the evident importance of the grounds upon which it is stated that the relevant belief and suspicion are based to the making of a decision by this Court hearing an application for leave under s 35A(5), it is necessary, in my opinion, that the supporting affidavit discloses the existence of facts relevant to the grounds relied upon as supporting the requisite states of mind in the authorised officer (i.e. the belief and suspicion specified in s 35A(4)(b)). 1. It is not appropriate in this judgment to refer to the detail contained in the affidavit of the Commission's officer. It is sufficient to note that the affidavit deals with the following matters: 1. The Commission's investigation and what it concerns. (2) The defendant's involvement in the matters being investigated. (3) The charging of the defendant with four counts of procuring a sexual act by a false pretence pursuant to s 218(1)(b) of the Criminal Code Act 1899 (Qld) and one count of rape pursuant to s 349 of the Queensland Code. (4) The grounds for the authorised officer's belief that the questioning of the defendant and/or the requirement for him to produce documents or things pursuant to ss 24 and/or 29 of the Act is in the public interest, notwithstanding that the questioning or requirement relates or may relate to the subject matter of the offences. (5) The evidence that is relevant to and relied upon as supporting the stated belief as required by s 35A(4)(a)(i). (6) The grounds for the authorised officer's suspicion that the questioning of the defendant or a requirement for him to produce documents or things pursuant to ss 24 and/or 29 of the Act is necessary to investigate the matter fully. (7) The evidence that is relevant to and relied upon as supporting the above stated suspicion in terms of s 35A(4)(a)(ii). 1. The offences with which the defendant is charged are Queensland offences. The issue arises, therefore, whether "offence" is s 35A relates only to an offence against the laws of New South Wales, or includes offences against other state laws. 2. An issue in D151 was whether s 35A applied to federal offences. That was particularly because s 12 of the Interpretation Act relevantly provided: 12 References to New South Wales to be implied (1) In any Act or instrument— (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. 1. Justice Basten (with whom Beazley ACJ agreed), having held at [25] that there is no reason in principle why the State legislature cannot provide protection from questioning in the exercise of executive power of persons charged with offences of any kind, whether involving contraventions of State or Federal law, went on to say: [26] Further, there is every reason to think that the legislation was intended to have a broad operation in order to serve its protective purpose. That is because, although it may be the primary function of the Commission to investigate criminal activity involving contraventions of New South Wales law, there will be numerous occasions on which persons may be involved in both federal and state offences. The alleged drug dealing the subject of the present matter provides a paradigm example; importation of drugs is prohibited under federal law, but the possession and supply of the same drugs in New South Wales are prohibited under State law. … [33] It is thus apparent from the subject matter and structure of the Crime Commission Act that s 12(1) of the Interpretation Act, providing a presumption of local reference, is subject to numerous qualifications in the Crime Commission Act. These indications, confirmed by reference to practical considerations as to the operation of the Act, support the conclusion that a narrow construction should not be given to the operation of s 35A. Accordingly, and subject to any qualification flowing from potential invalidity which might require the language of the section to be read down, the applicants' submissions as to construction should be rejected. 1. In similar vein, in D151 Simpson J effectively held, at [96], that the word "offence" appearing in s 35A should not bear the meaning that it bears in other parts of the Act, with the result that the use of the word "offence" in s 35A can mean an offence that is other than an offence committed in New South Wales. 2. I am satisfied that the supporting affidavit in the present case provides evidence relevant to the grounds relied upon by the authorised officer, and that those grounds well support the stated belief and suspicion held in terms of s 35A(4)(a)(i) and (ii) of the Act. 3. I am satisfied that any prejudicial effect that is likely to arise at the defendant's trial in Queensland in relation to the current charges against him from the proposed questioning or requirement is outweighed by the public interest in using the Commission's powers to ensure that the matters referred to in the copy of the notice accompanying the summons issued to the defendant are fully investigated, particularly given the very serious nature of those matters. 4. I consider that five conditions proffered by the Commission should be imposed upon the grant of leave to minimise any prejudice to the defendant. Accordingly, I make the orders contained in paras 1, 2, 3 and 5 of the draft order which I will sign and date today. I grant leave in accordance with para 4 subject to the conditions identified in para 6 of the draft order. I note that undertaking contained in the draft 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: 30 June 2023