Supreme Court New South Wales Medium Neutral Citation: R v Simmons; R v Moore [2015] NSWSC 73 Hearing dates: 16 February 2015 Date of orders: 16 February 2015 Decision date: 16 February 2015 Jurisdiction: Common Law Before: Hamill J Decision: See orders Catchwords: CRIMMINAL LAW – assumed identities – undercover police officers – application for suppression orders under assumed identities legislation – orders to be made unless "interests of justice otherwise require" – suppression orders made – ancillary orders made CRIMINAL LAW - non-publication orders – integrity of administration of justice – order necessary to protect trial process – order will protect Commissioner's position regarding police operation – no need to consider other bases for orders Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) Category: Procedural and other rulings Parties: New South Wales Commissioner of Police (Applicant) Tony James Simmons (Respondent) Kieran Moore (Respondent) Representation: Counsel: R Bhalla (Applicant) P Young SC (Respondent - Simmons) J Stratton SC (Respondent - Moore) P Barrett (Crown Prosecutor) Solicitors: Crown Solicitors (Applicant) Mathew Lorkin Solicitor (Respondent - Simmons) Hadrin Law (Respondent - Moore) File Number(s): 2013/150652013/17269 ex tempore Judgment 1. By notice of motion filed in court this morning, the New South Wales Commissioner of Police seeks a number of orders which fall into two categories. First, orders are sought to protect the identity of some 11 witnesses who might generally be described as undercover operatives. Those orders are sought under the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) and include orders that the witnesses be permitted to appear in court under their assumed names, various non-publication orders and closure of the Court during the course of their giving evidence. The second series of orders seeks non-publication with respect to details of various aspects of the police operation and the submissions relating to both applications. That application is made under the Court Suppression and Non-publication Orders Act 2010 (NSW) ("Court Suppression Act"). 2. In support of the affidavit, Mr Bhalla (who represents the Commissioner) reads an open affidavit of Malcolm Arthur Lanyon and a confidential affidavit by the same deponent, along with a number of confidential exhibits. None of the parties who appear in the trial proper makes submissions against the making of the orders or take any particular position on the Commissioner's application. 3. I have read and considered the affidavit material. I note the content of s 34 of the Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW): "34. Identity of certain persons not to be disclosed in legal proceedings (1) If, in proceedings before a court, a tribunal or a Royal Commission or other commission of inquiry, the identity of a person in respect of whom an authority is or was in force is in issue or may be disclosed, the court, tribunal, Royal Commission or other commission must, unless it considers that the interests of justice otherwise require: (a) ensure that such parts of the proceedings as relate to the identity of the person are held in private, and (b) make such orders as to the suppression of evidence given before it as, in its opinion, will ensure that the identity of the person is not disclosed. (2) In particular, the court, tribunal, Royal Commission or other commission of inquiry: (a) may allow a person in respect of whom an authority is or was in force to appear before it under the assumed name or under a code name or code number, and (b) may make orders prohibiting the publication of any information (including information derived from evidence given before it) that identifies, or might facilitate the identification of, any person who has been or is proposed to be called to give evidence. (3) A person must not contravene an order in force under this section. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both." 1. It will be seen that the Court must make relevant orders unless it is in the interests of justice to do otherwise. I am not satisfied that it is in the interests of justice to do anything other than that which is necessary to protect the identity of the various witnesses. Accordingly, I propose to make orders in accordance with orders 14 through to 21 in the notice of motion, although they will be renumbered when I make the final orders. 2. As to the second aspect of the Commissioner's application, the three very experienced counsel who appear for the parties in the trial proper all agree that it is necessary to make a non-publication order over all of the evidence and submissions which are to be heard on the voir dire. That is to protect the integrity of the process and the ultimate trial, which may (or, as I found out this morning, may not) be by jury. I am satisfied pursuant to s 8(1)(a) of the Court Suppression Act that such an order is necessary to prevent prejudice to the proper administration of justice. Accordingly, it is not necessary at this stage to resolve whether subs-s (a), (c) or (e) of s 8(1) are engaged by virtue of the matters raised on behalf of the Commissioner. That question may need to be revisited at the conclusion of the voir dire, but at this stage the Commissioner's position will be protected by the orders that I propose to make. 3. Accordingly, I make the following orders: 1. The 11 witnesses referred to in orders 3 to 13 of the notice of motion be allowed to appear before the Court at the hearing of these proceedings under their respective assumed names. For clarity, those witnesses are referred to in their statements as UCO 1, UCO 2, UCO 3, UCO 4, UCO 5, UCO 6, UCO 7, UCO 8, UCO 9, UCO 10 and UCO 11. 2. The witnesses be otherwise referred to by their assumed names during the course of the hearing, during the course of any other or further interlocutory proceedings conducted in connection with these proceedings and for all purposes in these proceedings. 3. There is to be no publication or other disclosure of the real identity of the witnesses or of any document, evidence or other disclosure that identifies or might facilitate the identification of the real identities of the witnesses except as is necessary for the proper conduct of the proceedings. 4. There is to be no publication or other disclosure of the assumed identities or assumed names of the witnesses or of any document or evidence that identifies or might facilitate the identification of the assumed names of the witnesses except as is necessary for the proper conduct of the proceedings. 5. Without limiting the generality of orders (3) and (4), there is to be no publication or other disclosure of any visual or other description or depiction of the physical appearances or any other identifying features of the witnesses except as is necessary for the proper conduct of the proceedings. 6. The Court is to be closed for the duration of the evidence given by the witnesses, subject to the following being permitted to be present in court while they give their evidence: 1. the accused and their legal representatives; 2. the legal representatives of the prosecution; 3. officers of the New South Wales Police Force involved in investigating the offences before the Court and officers of the New South Wales Police Force attached to the New South Wales Police Force Undercover Program so long as they are not themselves required to give evidence after any of the witnesses; 4. legal representatives for the Commissioner of Police; 5. staff of the Department of Corrective Services; 6. court staff; and 7. any person sworn or affirmed as a member of a jury in the trial. 1. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act, orders (3) through to (5) are to apply throughout the Commonwealth of Australia. 2. Pursuant to s 12 of the Court Suppression and Non-publication Orders Act, the orders will apply until any further order of the Court. 3. There is to be no publication of any evidence or submissions given or made in the course of the pre-trial voir dire, such order to remain in effect until any further order of the Court and to apply throughout the Commonwealth. 4. There is to be no publication in relation to submissions heard this morning. 1. The confidential affidavit and the written submissions in support will be placed in a sealed envelope, not to be opened except by order of a judge of this Court or a judge of a higher court. ********** 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: 09 April 2015