District Court New South Wales Medium Neutral Citation: R v RK [2017] NSWDC 80 Hearing dates: 27 October 2015, 21 November 2016, 17 February 2017 and 27 March 2017 Decision date: 27 March 2017 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Commissioner of Police has shown cause why no referral should be made to the Supreme Court following the deliberate destruction of a Court Exhibit. Catchwords: Assistance to authorities documents – release of s.23 documents from Court file – undesirability of returning s.23 documents to the Crown/ Commissioner of Police under current Police protocols/guidelines. Legislation Cited: Crimes (Sentencing Procedure) Act 1999. Category: Procedural and other rulings Parties: Regina: (amicus curiae on Show Cause; Respondent on Severity Appeal). RK: (excused on Show Cause; appellant on severity appeal). Commissioner of Police: (Respondent on Show Cause) Representation: Mr Everson, (Crown) No appearance, (RK) Mr Regener, (Commissioner of Police) File Number(s): 2014/00329040; 2015/00047569 Publication restriction: Non Publication Order regarding identity of offender. Judgment 1. On 27 October 2015 RK appeared before the Court in relation to severity appeals from sentences imposed on him in the Local Court. 2. The Local Court had imposed fixed terms of full time imprisonment. 3. At the conclusion of the appeal, the convictions and terms of imprisonment were confirmed - but the sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 4. During the course of the appeal, documents captured by s 23 of the Crimes (Sentencing Procedure) Act were tendered and became exhibit B. 5. At the conclusion of the severity appeal, the Court ordered that exhibit B be returned to the Crown for forwarding to the relevant officer of the New South Wales police, on the Crown's undertaking that the documents would be produced to this, or any other, Court in the future if required. 6. The appellant breached the s 12 bond and those bonds were called up and revoked on 21 November 2016. 7. On that occasion, the Court required the production of exhibit B but it was not produced. 8. When the call-up was ultimately disposed of on 17 February 2017, counsel for a Detective Chief Inspector appeared before the Court in connection with the missing exhibit. That counsel informed the Court that the exhibit had been destroyed - purportedly in accordance with a procedure or protocol approved by the New South Wales Police Commissioner. 9. The deliberate destruction of a Court exhibit in circumstances where proceedings may well be ongoing (which is implicit in a suspended sentence) or where, in other circumstances, the likelihood of an appeal is at least on the cards is a matter of very real concern. (In fact, some appeals are filed well out of time). 10. In recent years, a practice has developed among some of the judges of this Court (at the request of the parties) for s 23 documents not to be retained on the Court file but to be returned to the parties. This practice has developed because of a concern about the matters raised by such documents and the method of storage of those documents in the Court registries. 11. The present case, however, gives rise to significant concern about that practice. Speaking for myself, I was certainly unaware of the existence of any procedure or protocol by the Commissioner of the kind to which I have referred - and indeed, apart from having been told about it on 17 February 2017, I remain in ignorance of that procedure or protocol as the Commissioner has not chosen to reveal it to the Court in an appropriate way. 12. I can only say for myself that, from now on, I shall not be returning any s 23 documents in any other matter to the parties. 13. It seems to me that it might be desirable for the Court to have a central repository in an appropriately secure location for such documents. Unless and until that development occurs, the documents in the matters with which I deal will necessarily have to remain in the Court files. 14. In all of what I have said today, I accept entirely that there has been no mala fides on the part of the Commissioner. Moreover nothing that has occurred in the present case could possibly be construed adversely to any officer of the Director of Public Prosecutions. 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: 12 April 2017