Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v D106 [2018] NSWSC 1130 Hearing dates: 18 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Until further order of this Court, pursuant to s 7 of the Court Suppression and Non−Publication Orders Act 2010 (NSW) and upon the grounds set out in paragraphs 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 (NSW) and except for: (e) the proper execution of the orders of the Court; and (f) the proper processes of the New South Wales Crime Commission ('the Commission') in pursuing its investigation pursuant to the Crime Commission Act as disclosed in evidence filed in support of the summons. (2) Order 1 is to have effect throughout the Commonwealth. (3) Leave is granted pursuant to s 35A of the Crime Commission Act to the Plaintiff, its officers and legal practitioners engaged or employed by it, to: (a) question D106, under s 24 of the Crime Commission Act at a hearing before the Commission; and (b) require D106, under s 24 of the Crime Commission Act to produce a document or thing; in relation to the subject matter of the offences he/she is currently charged with, namely: REDACTED (4) The Defendant be referred to by the pseudonym D106. This leave is granted subject to the following conditions: (1) The defendant is to be informed, before she gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Crime Commission Act, and be afforded the opportunity to obtain legal advice in respect of those provisions, in particular, her right to object to providing evidence. (2) The Commission is to maintain a record of all persons to whom the evidence of D106 or a record of any of her evidence has been disclosed. (3) The Commission is to take steps to ensure that the investigators involved in D106's arrest and who are still involved in ongoing inquiries relevant to her prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission. (4) Upon request by D106 or by any legal representative instructed by D106, the Commission will provide written certification that conditions 2 and 3 have been complied with. (5) The electronic document library relevant to the hearing process concerning D106 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning her 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. Catchwords: CIVIL LAW – ex parte application – examination orders – application under s 35A Crime Commission Act 2012 (NSW) – orders made on conditions – pseudonym and other orders made under 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crime Commission Act 2012 (NSW) Firearms Act 1996 (NSW) Cases Cited: New South Wales Crime Commission v D109 [2015] NSWSC 1244 New South Wales Crime Commission v D181 [2015] NSWSC 1836 NSW Crime Commission v D150 [2015] NSWSC 1842 New South Wales Crime Commission v D101 [2016] NSWSC 548 X7 v Australian Crime Commission (2013) 248 CLR 92; 2013] HCA 29 Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) D106 (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2018/221009 Publication restriction: Nil Judgment 1. By summons which I granted the New South Wales Crime Commission leave to file in Court, the Commission applied ex parte for leave under s 35A of the Crime Commission Act 2012 (NSW) to take evidence from an accused person, here referred to as D106, in relation to the subject matter of offences specified in the schedule to the summons, as well as orders under the Court Suppression and Non-publication Orders Act 2010 (NSW). It is proposed that if leave is given, the examination would proceed on 2 August, in accordance with a notice which is attached to the summons. 2. The application was supported by an affidavit sworn by a senior officer of the Commission, as s 35A requires. 3. On that evidence I am satisfied that the Court's discretions to make the orders sought should be exercised, for the following reasons. 4. Section 35A applies to a person who is the subject of a current charge for an offence and regulates the taking of evidence from that person in relation to the subject matter of the offence: s 35A(1). The section empowers the Court to give the Commission certain leave in relation to the questioning of the person under s 24, or the production of a document under that section or s 29. Section 35A(4) requires that the application be 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." 1. The Court may grant the leave sought if 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": s 35(5). 2. The operation of the legislative scheme was considered in New South Wales Crime Commission v D109 [2015] NSWSC 1244 by McCallum J, who outlined the legislative history, which includes the State legislature's response to what was decided in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29. The statutory scheme was also considered by Hall J in New South Wales Crime Commission v D181 [2015] NSWSC 1836 and by Adamson J in NSW Crime Commission v D150 [2015] NSWSC 1842. I do not here repeat the explanations there given of this statutory scheme. 3. In D181 Hall J observed at [20]: [20] 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: (a) Firstly, the question of "prejudicial effect" as referred to in s 35A(5). (b) 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". (c) 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. (3) 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. (4) 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. In New South Wales Crime Commission v D101 [2016] NSWSC 548, Davies J adopted what Hall J said in D181. I agree and adopt the same approach, also noting as McCallum J did in D109 at [24], that if the statutory requirements are satisfied the discretion, if exercised, must be exercised judicially, having regard to the objects of the Act. That object is specified in s 3 to be "to reduce the incidence of organised and other serious crime." 2. Like their Honours, I take the view that it is not appropriate in this judgment to refer to the detail contained in the affidavit affirmed by the Commission's officer, given the nature of what is there disclosed, in order to explain why I have been persuaded that the statutory requirements have been satisfied and that the Court's discretion must be exercised. 3. It is sufficient to note that there the officer explains the investigations being conducted into identified offences; that D106 has been charged with the offences under the Crimes Act 1900 (NSW) and the Firearms Act 1996 (NSW) specified in the schedule; the grounds on which the officer has come firstly, to believe that questioning D106 is in the public interest, notwithstanding that the questioning relates or may relate to the subject matter of the offences charged and secondly, to suspect that the questioning is necessary to fully investigate the matter referred to in the copy of the notice accompanying a summons issued by the Commission to D106. 4. I am well satisfied that the matters to which the officer has deposed in the affidavit, establishes a proper basis for the officer holding the beliefs and suspicions which are there explained and that as a result, they are in fact held. I am also satisfied that thereby all of the requirements of s 35A(4) are satisfied in this case. 5. I am also satisfied on this evidence that while some prejudicial effect may arise for D106's trial from the proposed questioning or requirement, if the Commission's application succeeds, that effect is outweighed by the undoubted public interest which lies in using the Commission's powers to ensure that the matter referred to in the notice issued to D106, is fully investigated. 6. In the result, I am further satisfied that the Court's power to make the orders sought under s 35A is enlivened by the application and that it should, in all of the circumstances disclosed in the affidavit, be exercised. 7. There is a question as to whether any conditions should be imposed under s 35(6), to minimise potential prejudice to D106. In D101 for example, Davies J imposed conditions that: "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 D101 or a record of any of his evidence has been disclosed, such record to be made available for inspection by D101 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 D101'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. The electronic document library relevant to the hearing process concerning D101 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. The Commission opposed condition 2 being imposed in its entirety in this case, given concerns about a potential prejudicial impact on such a disclosure to D106. The Commission thus proposed a condition as to certification in relation to the matters dealt with in conditions 2 and 3. 2. I am satisfied that the Commission's submissions should be accepted and orders, including conditions, should be made in the form finally pressed. 3. I am also satisfied that in those circumstances, the orders sought under the Court Suppression and Non-publication Orders Act should be made, grounds specified in s 8(1)(a)(c) and (e), having been established by the evidence. They provide: "(a) the order is necessary to prevent prejudice to the proper administration of justice, … (c) the order is necessary to protect the safety of any person, … (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice." Orders 1. For these reasons, I order that: 1. Until further order of this Court, pursuant to s 7 of the Court Suppression and Non−Publication Orders Act 2010 (NSW) and upon the grounds set out in paragraphs 8(1)(a), (c) and (e) therein, there is to be no disclosure or publication of: 1. the summons; 2. the name of the Defendant; 3. the evidence filed in support of the summons; and 4. any transcript of the hearing of this matter, subject to the requirements of subsection 35A(8) of the Crime Commission Act 2012 (NSW) and except for: 1. the proper execution of the orders of the Court; and 2. the proper processes of the New South Wales Crime Commission ('the Commission') in pursuing its investigation pursuant to the Crime Commission Act as disclosed in evidence filed in support of the summons. 1. Order 1 is to have effect throughout the Commonwealth. 2. Leave is granted pursuant to s 35A of the Crime Commission Act to the Plaintiff, its officers and legal practitioners engaged or employed by it, to: 1. question D106, under s 24 of the Crime Commission Act at a hearing before the Commission; and 2. require D106, under s 24 of the Crime Commission Act to produce a document or thing; in relation to the subject matter of the offences he/she is currently charged with, namely: REDACTED. 1. The Defendant be referred to by the pseudonym D106. This leave is granted subject to the following conditions: 1. The defendant is to be informed, before she gives evidence to the Commission in the proposed hearing by it, of the provisions of s 45A of the Crime Commission Act, and be afforded the opportunity to obtain legal advice in respect of those provisions, in particular, her right to object to providing evidence. 2. The Commission is to maintain a record of all persons to whom the evidence of D106 or a record of any of her evidence has been disclosed. 3. The Commission is to take steps to ensure that the investigators involved in D106's arrest and who are still involved in ongoing inquiries relevant to her prosecution do not have access to the evidence obtained at the hearing proposed to be conducted by the Commission. 4. Upon request by D106 or by any legal representative instructed by D106, the Commission will provide written certification that conditions 2 and 3 have been complied with. 5. The electronic document library relevant to the hearing process concerning D106 has been and will remain quarantined from the relevant investigating officers involved in inquiries concerning her 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. ********** Amendments 28 August 2018 - typographical errors 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: 28 August 2018