Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v D181 [2015] NSWSC 1836 Hearing dates: 27 November 2015 Date of orders: 27 November 2015 Decision date: 03 December 2015 Jurisdiction: Common Law Before: Hall J Decision: Leave granted to the New South Wales Crime Commission, pursuant to s 35A of the Crime Commission Act 2012, to: (1) Question the defendant under s 24 of the Crime Commission Act 2012 at a hearing before the Commission; and (2) Require him under s 24 or s 29 of the Crime Commission Act 2012 to produce a document or thing in relation to matters relating to the subject matter of the offences with which he presently stands charged, namely, two offences contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) and one offence contrary to s 193C(1) of the Crimes Act 1900 (NSW). Catchwords: PROCEDURE – Application by Crime Commission under s 35A of the Crime Commission Act 2012 ("the Act") for leave to examine an accused person about the subject matter of the offences charged or to require an accused person to produce documents or things to the Commission – Whether supporting evidence establishes requisite belief and suspicion under s 35(4) of the Act and the grounds on which the belief and suspicion is based – Whether any prejudicial effect 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 – Analysis of the statutory requirements under s 35A before the Supreme Court may grant leave under s 35A(5) of the Act – Satisfied that public interest in this case outweighs any likely prejudicial effect – Leave granted to the Crime Commission to question the defendant under s 24 of the Act – Leave granted to the Crime Commission to require the defendant to produce a document or thing in relation to matters relating to the subject matter of the charged offences under ss 24 or 29 of the Act – Orders made under s 7 Court Suppression and Non-Publication Orders Act 2010 (NSW). Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 Crime Commission Act 2012 Crime Commission Legislation Amendment Bill 2014 Cases Cited: Lee v The Queen [2014] HCA 20; 253 CLR 455 New South Wales Crime Commission v D109 [2015] NSWSC 1244 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) D181 (Defendant) Representation: Counsel: G Drennan (Plaintiff) ex parte Solicitors: New South Wales Crime Commission (Plaintiff) ex parte File Number(s): 2015/349804 Publication restriction: Pseudonym order made in respect of the defendant Judgment 1. The New South Wales Crime Commission by way of Summons bought an ex parte application for leave pursuant to s 35A(4) of the Crime Commission Act 2012 ("the Act") to take evidence from a person accused of offences about the offences. 2. On 27 November 2015, leave was granted to file the Summons in court and for the application to be heard ex parte. Ms Gabrielle Drennan appeared on behalf of the Crime Commission. 3. The Summons is supported by an affidavit affirmed by an officer of the Commission on 6 November 2015. 4. The Summons sought an order that the proceedings be heard instanter together with an order that the proceedings be heard in camera. 5. In addition, the Summons also sought non-disclosure and non-publication orders pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 in respect of: "a. the summons; b. the name of the defendant; c. the evidence filed in support of the summons; and d. any transcript of the hearing of the summons, subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 and except for: e. the proper execution of the orders of the Court; and f. the proper processes of the NSW Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in the evidence filed in support of the summons." 1. On 27 November 2015 I made a non-disclosure and non-publication order in accordance with s 7 of the lastmentioned Act and proceeded to hear the application under s 35A(4) in a closed court on an ex parte basis. 2. At the hearing I accepted, as Ms Drennan proposed, that it was appropriate that the defendant be identified by a pseudonym. I formally order that the defendant be referred to as D181. The Statutory Provisions for the Grant of Leave 1. Division 6 of the Act, entitled "Evidence of accused persons" is constituted by the provisions of s 35A, which in turn is entitled "Leave of Supreme Court to take evidence from accused person about the offence". Those provisions were introduced for inclusion in the Act by the Crime Commission Legislation Amendment Bill 2014 ("the Amendment Bill") which came into operation on 28 November 2014. 2. The section is in the following terms: 35A 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. The provisions of s 35A have recently been the subject of consideration in New South Wales Crime Commission v D109 [2015] NSWSC 1244 (McCallum J). The judgment in that case notes that the Second Reading Speech in respect of those provisions of the Amendment Bill and related provisions were introduced in response to the decisions of the High Court in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 and Lee v The Queen [2014] HCA 20; 253 CLR 455. The judgment of McCallum J in D109 sets out a detailed and helpful analysis of the provisions constituting s 35A with a discussion of the tasks required of this Court on an ex parte application made under s 35A. In that respect her Honour observed: "24. Section 35A(5) poses two tasks. The first is to consider whether I am satisfied that any prejudicial effect that is likely to arise to the defendant's trial from the proposed questioning or requirement to produce a document or thing is outweighed by the public interest in using the Commission's powers to ensure that the matter in question is fully investigated. If I am not satisfied in those terms, there is no power to grant the leave sought. The second task is, if satisfied in those terms, to consider whether to exercise the discretion to grant leave. That discretion must be exercised judicially having regard to the objects of the Act." 1. Her Honour also noted and discussed new provisions of the Act which it was observed provide three tiers of protection to people questioned under s 35A: D109 at [26]-[28]. As her Honour observed, further protections may be afforded, where leave is granted under s 35A, by the imposition of appropriate conditions to a grant of leave: D109 at [33]. 2. Section 35A(2) imposes, in effect, a prohibition upon a person who is the subject of a current charge for an offence being questioned under s 24 of the Act at a hearing before the Commission or being required to produce a document or thing under ss 24 or 29 in relation to matters relating to the subject matter of the offence "… without the leave of the Supreme Court": s 35A(2). 3. The Commission is entitled under s 35A(4) to apply to the Supreme Court ex parte for leave under s 35A(2) where the application is supported by an affidavit of an officer of the Commission stating that he or she holds a requisite belief and suspicion as to the matters referred to in s 35A(4)(a)(i) and (ii) and which also states the grounds on which the belief and suspicion are based: s 35A(4)(b). 4. In the detailed supporting affidavit to the application made in the present proceedings, the Commission's authorised officer has stated (a) that she holds a belief that the questioning of the defendant is in the public interest, notwithstanding that the questioning or a requirement to produce documents or things pursuant to s 24 and/or s 29 of the Act in the public interest relates, or may relate, to the subject matter of the offences with which the defendant has been charged and (b) that she suspects that the questioning of the defendant or requiring him to produce documents or things pursuant to s 24 and/or s 29 is necessary to fully investigate the matter referred to in the Affidavit and notice under s 51(1)(a) of the Act, a copy of which is annexed to the affidavit which accompanied a summons issued to and served upon the defendant. 5. The supporting affidavit, in conformity with the provisions of s 35A(4)(b) of the Act, additionally sets out the grounds on which the Commission's officer's belief and suspicion in terms of s 35A(4)(a)(i) and (ii) are based,. 6. The affidavit at [82]-[83] addresses appropriate safeguards and precautions which the Commission has adopted or will have in place to prevent access to evidence obtained at the Commission's hearing. Analysis 1. In the present application for the grant of leave under s 35A(5), leave is to be granted if I am "satisfied" that any prejudicial effect that is likely to arise to the defendant's trial from the proposed questioning or requirement to produce a document(s) or thing(s) is outweighed by the public interest in using the Commission's powers to ensure that the matter, referred to in the copy of the notice accompanying the Summons issued to the defendant is fully investigated. 2. Any grant of leave requires consideration as to whether the same should be made on an unconditional basis or made subject to conditions imposed by the Court: s 35A(6). 3. In the consideration of an application for the grant of leave under s 35A(5) it is, in my opinion, necessary for the Court to bear in mind the fact that it is being asked to exercise a significant power ex parte. The significance of it, of course, at least in part, lies in the fact that the provisions of s 35A(5) provide for the grant of leave to the Commission, inter alia, to question a person facing a criminal charge or charges in relation to the subject matter of the charge(s). As observed in the High Court's judgment in X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [85] per Hayne and Bell JJ: "…permitting the Executive to ask, and compelling answers to, questions about the subject matter of a pending charge (regardless of what use may be made of those answers at the trial of an accused person) fundamentally alters the process of criminal justice. It is that observation which is critical to the question of statutory construction which must be answered in this case." 1. 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: 1. Firstly, the question of "prejudicial effect" as referred to in s 35A(5). 2. 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". 3. 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. 1. 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. 2. 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 in detail to the contents of the supporting affidavit in the present application. The affidavit confirms that the application relates to a person (the defendant) who is the subject of current charges for offences and to a proposed hearing of the Commission to be held for the taking of evidence from him. As indicated above, a summons has been issued by the Commission under s 24 of the Act for him to appear before it and give evidence. 2. The material in the supporting affidavit deals with the following: * Matters relevant to the proposed examination; * The nature and results of investigations in relation to the matters referred to in the s 51(1)(a) Notice. * The grounds for the authorised officer's belief that the questioning of the defendant or a requirement for him to produce documents or things pursuant to s 24 and/or s 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 with which he is charged. * The evidence that is relevant to and relied upon as supporting the stated belief as required by s 35A(4)(a)(i); * 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 s 24 and/or s 29 of the Act is necessary to fully investigate a specified matter; * The evidence that is relevant to and relied upon as supporting the above stated suspicion in terms of s 35A(4)(a)(ii). 1. I am satisfied that the supporting affidavit provides cogent 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. 2. Upon consideration of the evidence in support of the application and pursuant to s 35A(5) I am satisfied that any prejudicial effect that is likely to arise to the defendant's trial 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 a matter referred to in the copy of the notice accompanying the summons issued to the defendant is fully investigated. 3. In relation to the Court's discretion, I have concluded that, on the evidence, the power to grant leave pursuant to s 35A(5) should be exercised on the basis set out below. Orders 1. Accordingly, I make the following orders: 1. I grant leave to the New South Wales Crime Commission, pursuant to s 35A of the Crime Commission Act 2012, on the basis of the conditions and order set out below to: 1. Question the defendant under s 24 of the Crime Commission Act 2012 at a hearing before the Commission; and 2. Require him under s 24 or s 29 of the Crime Commission Act 2012 to produce a document or thing in relation to matters relating to the subject matter of the offences with which he presently stands charged, namely, two offences contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) and one offence contrary to s 193C(1) of the Crimes Act 1900 (NSW). 1. Order that, upon the undertaking that has been given to the Court by the New South Wales Crime Commission that it will safely store the evidence filed in support of the summons and deal with that evidence in accordance with any future direction of the Court the evidence that has been filed in support of the summons be returned forthwith to the Commission for storage. Conditions Under s 35A 1. The defendant is to be informed, before he gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Act and afforded the opportunity to obtain legal advice in respect of those provisions, in particular, his right to object to providing evidence. 2. The Commission is to maintain a record of all persons to whom the evidence of D181 or a record of any of his evidence has been disclosed, such record to be made available for inspection by D181 upon request by him or by any legal representative instructed by him. 3. The Commission is to take steps to ensure that the investigators involved in D181's arrest and who are still involved in ongoing inquiries relevant to his prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission. 4. That the electronic document library relevant to the hearing process concerning D181 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning his prosecution and there will be no future communication of any evidence obtained as a result of the hearing by the Commission to such investigating police officers. 1. I confirm that the orders made on 27 November in the following terms are to continue until further order of the Court: "1. Until further order of this court, pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010 and upon the grounds set out in s 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of: a. the summons; b. the name of the Defendant; c. the evidence filed in support of the summons; and d. any transcript of the hearing of this matter, subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 and except for: e. the proper execution of the orders of the Court; and f. the proper processes of the NSW Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence filed in support of the summons. 2. Order 1 is to have effect throughout the Commonwealth." ********** 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: 15 December 2015