D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: D151, D152, D154 v New South Wales Crime Commission [2017] NSWCA 143 Hearing dates: 24 February 2017 Decision date: 21 June 2017 Before: Beazley ACJ at [1]; Basten JA at [2]; Simpson JA at [43] Decision: Q1. Upon its proper construction, does s 35A of the Crime Commission Act 2012 (NSW) ("Act") confer a power upon the Supreme Court to grant leave to the New South Wales Crime Commission to take evidence from a person who is the subject of a current charge against the laws of the Commonwealth?

Answer: Yes.

Q2. If yes, is s 35A of the Act invalid to that extent, on the ground that to permit such leave to be granted in those circumstances:

(a) would contravene Ch III of the Constitution by reason that it would purport to authorize a contempt of a State court exercising federal criminal jurisdiction thereby impairing the institutional integrity of that court as a repository of judicial power of the Commonwealth; or

(b) would contravene Ch III of the Constitution by reason that it would be an impermissible interference with:

(i) essential features of the judicial power of the Commonwealth, namely the accusatorial nature of a criminal trial (as considered in X7 v Australian Crime Commission (2013) 248 CLR 92); or

(c) would contravene s 80 of the Constitution by reason that it would be an impermissible alteration of fundamental features of 'trial … by jury' on an indictment for an offence against a law of the Commonwealth?

Answer: No.