New South Wales Crime Commission v D115 [2024] NSWSC 450

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v D115 [2024] NSWSC 450 Hearing dates: 19 April 2024 Date of orders: 22 April 2024 Decision date: 22 April 2024 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) and upon the grounds set out in sections 8(1)(a) and (c), there is a suppression order over: (a) the summons; (b) the name of the defendant (subject to the pseudonym order that will follow); (c) the evidence filed in support of the summons; and (d) any transcript of the hearing of this matter. (2) Order 1 is subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) and the following exceptions: (a) the proper execution of the orders of the Court; (b) 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; (c) disclosure of material necessary for the prosecution of the defendant referred to by the pseudonym D115 for any offences the defendant may be charged with under the Act; (d) disclosure to any lawyers engaged by D115 to appear for him in or in preparation for the examination subject to these orders. (3) Order 1 is to have effect throughout the Commonwealth. (4) Order 1 is to continue until [REDACTED] the completion of the Crime Commission's current investigation, whichever is the sooner, or until further order of the Court, which may extend the duration of the suppression order. (5) The defendant is to be referred to by the pseudonym D115. (6) Leave is granted pursuant to section 35A of the Act to the plaintiff, its officers and legal practitioners engaged or employed by it, to: (a) question D115 at a hearing under section 24 of the Act; and (b) require D115 to produce a document or thing under section 24 or section 29 of the Act; in relation to the subject matter of the offences with which D115 is currently charged, namely: (i) One count of [REDACTED]; (ii) One count of [REDACTED]; and (iii) One count of [REDACTED]. (7) An order that, upon the defendant no longer being the subject of the charges identified in paragraph 6, orders 1(b) and 5 be vacated. (8) This leave is granted subject to the following conditions: (a) D115 is informed, before they give evidence in the proposed hearing, of section 42 of the Act and its effect, and be afforded an opportunity to obtain legal advice in respect of that section; in particular, D115's right to object to providing evidence. (b) The Commission maintains a record of all persons to whom the evidence of or a record of any of the evidence of D115 has been disclosed. (c) The Commission takes steps to ensure that the investigators involved in D115's arrest and who are still involved in ongoing inquiries relevant to the prosecution of D115 for the offences set out in paragraph 6 do not have access to the evidence obtained at the proposed hearing. (d) The electronic document library relevant to the hearing process concerning D115 has been and will remain quarantined from the police officers investigating or involved in the prosecution of D115 for the offences set out in paragraph 6 and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to those officers. (e) [REDACTED]. (f) The Commission's officers are to take all reasonable steps to ensure, and satisfy themselves, that the defendant in fact receives the summons and notice by the time referred to in 8(e) and that he understands his right to legal representation and the provisions in s 42. Mere provision of the notice will not satisfy this condition. (g) [REDACTED]. (h) The defendant and his legal representatives have a right to apply to seek to revoke or vary the order and grant of leave by urgent application to the duty Judge (or another Judge of this Court) if – and only if – further evidence is available that goes to the question of the likelihood of prejudice to D115's trial on the offences for which he currently stands charged. (i) Upon request by D115 or by any legal representative instructed by D115, the Commission will provide written certification that conditions 8(a) to 8(g) have been complied with. Catchwords: CIVIL LAW – compulsory examination before Crime Commission – requirement for leave by Supreme Court – ex parte application – constant guardian – where defendant foreign nation – charged with related offences – imposition of strict conditions on grant of leave – hybrid of competing considerations ­­­­ Legislation Cited: Court Suppression and Non−Publication Act 2010 (NSW) ss 7, 8(1)(a), 8(1)(c), 8(1)(e) Crime Commission Act 2012 (NSW) ss 24, 29, 35A, 42 Crime Commission Legislation Amendment Bill 2014 (NSW) Crimes Act 1900 (NSW) s 193C Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 36X Cases Cited: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 New South Wales Crime Commission v D109 [2015] NSWSC 1244 New South Wales Crime Commission v D110 [2022] NSWSC 1430 X7 v Australian Crime Commission & Anor (2013) 248 CLR 92; [2013] HCA 29 Texts Cited: Keith Mason and Larissa Reid, Constant Guardian, Changing Times: The Supreme Court of New South Wales 1824-2024 (2024, Judicial Commission of New South Wales) Category: Procedural rulings Parties: New South Wales Crime Commission (ex parte) File Number(s): 20224/147322 Publication restriction: (1) Pursuant to section 7 of the Court Suppression and Non−Publication Act 2010 (NSW) and upon the grounds set out in sections 8(1)(a) and (c), there is a suppression order over: (a) the summons; (b) the name of the defendant (subject to the pseudonym order that will follow); (c) the evidence filed in support of the summons; and (d) any transcript of the hearing of this matter.