Supreme Court New South Wales Medium Neutral Citation: D155 v NSW Crime Commission [2015] NSWSC 1931 Hearing dates: 10 December 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Common Law Before: Campbell J Decision: I make the following orders: The NSW Crime Commission is restrained from proceeding with questioning of the person referred to in these proceedings as D155 at 9.30am on 11 December 2015 either pursuant to the order made by Adamson J on 3 December 2015 or otherwise until further order, provided D155 complies with the following conditions: File the summons seeking the relief granted by 12 noon 11 December 2015; Take all necessary steps to bring the appeal commenced in 2015/362591 before the Court of Appeal by Monday 14 December 2015 for directions as to the future conduct of the appeal; and File an application for expedition of the appeal under r 51.60 Uniform Civil Procedure Rules 2005 (NSW) by Monday 14 December 2015. Catchwords: PROCEDURE – civil – application to restrain the New South Wales Crime Commission proceeding with questioning the applicant – orders made pursuant to s 35A Crime Commission Act 2012 (NSW) to question the applicant – where applicant has lodged an appeal from the decision with the Court of Appeal – in circumstances where the questioning was to take place before the appeal had been heard Legislation Cited: Crime Commission Act 2012 (NSW); Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: NSW Crime Commission v D150 [2015] NSWSC 1842; New South Wales Crime Commission v D109 [2015] NSWSC 1244; Re DG and The Adoption Act 2000 [2007] NSWCA 241 Category: Procedural and other rulings Parties: D155 (Applicant) Crime Commission of New South Wales (Respondent) Representation: Counsel: D. Jordan SC (Applicant) R. Bhalla (Respondent) Solicitors: Danny Eid Lawyers (Applicant) Morgan, NSW Crime Commission (Respondent) File Number(s): 2015/357113 ex tempore judgment (revised) 1. This is an application for an injunction to restrain the NSW Crime Commission proceeding with the questioning of a person referred to in matter number 2015/357113 as D155 tomorrow at 9.30am. Adamson J made orders on 3 December 2015 granting leave to the Commission, pursuant to s 35A of the Crime Commission Act 2012 (NSW) permitting the Commission to question D155 about the subject matter of current charges he faces for a serious offence. 2. The basis of the application turns upon ss (7) and (8) of s 35A, which are in the following terms: 35A Leave of Supreme Court to take evidence from accused person about the offence ... (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. 1. In compliance with those sub-sections, the notice provided to D155, which forms part of Exhibit A before me, says this: You are also hereby notified that you have the right to seek review of the grant of leave, pursuant to the Supreme Court Act 1970 and may make an application for legal and financial assistance in seeking such a review, under section 42 of the Crime Commission Act 2012. 1. It is unnecessary for me to go into the legislative history of s 35A and the body of case law that preceded it. That has, with great respect, been summarised in a decision of Adamson J, NSW Crime Commission v D150 [2015] NSWSC 1842 at [16] - [19]. Her Honour also made reference to the decision of McCallum J in New South Wales Crime Commission v D109 [2015] NSWSC 1244. 2. The application in no way seeks to collaterally challenge the decision made by Adamson J. Rather, it seeks a remedy from this Court in aid of the statutory right of "review" created by s 101 of the Supreme Court Act 1970 (NSW). There is no issue before me that the right of appeal from a judge of the Supreme Court to the Court of Appeal created by s 101 is a "right under another law to seek a review of the grant of leave" as referred to in s 35A(8). 3. A number of grounds of objection have been put forward on behalf of the Commission. Before dealing with them, I should say that D155 has filed a Notice of Appeal in the Court of Appeal earlier today and, in accordance with the usual timetable for those matters, it is listed for directions at 9 am on 23 March 2016. 4. The Commission's objections may be reduced to two salient points, I think, as I understand the argument that is put to me. The first is that the proper place for this application to be made is the Court of Appeal. As an ancillary point to that, it is argued, by reference to a decision of Court of Appeal in Re DG and The Adoption Act 2000 [2007] NSWCA 241, at [19] - [22] by Handley AJA, that the commencement of an appeal as of right is incompetent because by parity of reasoning with that decision, the "right" that D155 may have to be tried according to common law accusatorial procedures is not property which is capable of being valued in monies terms. Accordingly, the provisions of s 101(2)(r) require a grant of leave because neither sub-paragraph (i) nor (ii) applies to the matter. The argument is that the Court of Appeal would not grant relief in aid of an incompetent appeal. 5. There is a lot which must be said for that argument. There are a number of factors which I think indicate how it should affect my decision. First, it is not for me to say whether or not the appeal is competent. That is a matter for the Court of Appeal. On the other hand, as Re DG indicates, where an appellant, I will say, indicates a willingness to change track from an appeal as of right to the "leave track" in the Court of Appeal, generally, the Court will exercise its discretion to refrain from dismissing the appeal as incompetent, permitting the appellant to make the change. The appeal was only filed today, and it is early days. There is plenty of time, as it were, for D155 to mend his or her hand. 6. The second matter involves a group of arguments that were put against the grant of relief which might be referred to as balance of convenience arguments. The proposed questioning of D155 forms part of a long carefully planned and ongoing investigation into organised crime. To disrupt the pre-planned flow of the investigation would be harmful not only to the investigation itself, but as I think was implicitly argued, to the public interest. Again there is force to that argument. However, as to the protection of the person in D155's position included in the Act by other provisions enacted at the same time as s 35A, the enactment of ss (7) and (8) of s 35A persuades me that the Parliament acknowledges that those other protections may operate imperfectly and that a person, subject to questioning pursuant to leave granted under 35A, especially when the order might be made on an ex parte basis, should have available to him or her the statutory right of appeal available to other citizens aggrieved by the decision of a superior court. This suggests that there must be cases where the balance of convenience as put by the Commission ought not prevail especially where the person demonstrates a bona fide desire to exercise the statutory right of appeal, whether by leave or as of right. 7. For these reasons, I think I should grant the relief sought. 8. I should also say that it has been put, and not disputed, that attempts have been made to have the Commission agree to postponing the questioning of D155 to enable his or her right of appeal to be pursued before the questioning takes place. Doubtless, for reasons of the balance of convenience of the type I have already referred to, the Commission has refused to agree. In those circumstances, I am persuaded by the arguments of Mr Jordan of Senior Counsel that to refuse the relief sought will have the effect of rendering the statutory right of review completely nugatory if the questioning proceeds tomorrow. 9. I make the following orders: 1. The NSW Crime Commission is restrained from proceeding with questioning of the person referred to in these proceedings as D155 at 9.30am on 11 December 2015 either pursuant to the order made by Adamson J on 3 December 2015 or otherwise until further order, provided D155 complies with the following conditions: 1. File the summons seeking the relief granted by 12 noon 11 December 2015; 2. Take all necessary steps to bring the appeal commenced in 2015/362591 before the Court of Appeal by Monday 14 December 2015 for directions as to the future conduct of the appeal; and 3. File an application for expedition of the appeal under r 51.60 Uniform Civil Procedure Rules 2005 (NSW) by Monday 14 December 2015. ********** 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: 16 December 2015