Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v D108 [2019] NSWSC 1035 Hearing dates: 9 August 2019 Date of orders: 12 August 2019 Decision date: 12 August 2019 Jurisdiction: Common Law Before: Fagan J Decision: Leave granted to the plaintiff pursuant to s 35A of the Crime Commission Act 2012 to examine the defendant in relation to the subject matter of the offence with which he is currently charged. Legislation Cited: Firearms Act 1996 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Crime Commission Act 2012 (NSW) Cases Cited: New South Wales Crime Commission v D109 [2015] NSWSC 1244 Category: Procedural and other rulings Parties: New South Wales Crime Commisison D108 Representation: Counsel: P Bodor QC (plaintiff) Solicitor: M J Heard File Number(s): 2019/250226 Publication restriction: No Judgment 1. On 9 August the New South Wales Crime Commission applied to the Court pursuant to s 35A(2) and (4) of the Crime Commission Act 2012 (NSW) for leave to question D108 in relation to the subject matter of a current criminal charge against him. The application was heard ex parte in chambers. On 9 August 2018 orders were made under the Court Suppression and Non-publication Orders Act 2010 (NSW) to suppress and prohibit publication of the name of the defendant and to require that he be referred to in connection with the proceedings, including on all court process, as D108. 2. Section 24 of the Crime Commission Act empowers the Commission to summon a person to appear before it at a hearing to give evidence and produce documents or other things. Pursuant to s 29 a person may be issued a summons requiring only the production of specified documents or things. Section 35A came into force on 28 November 2014. It is as follows: 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. On 17 April 2019 D108 was charged by New South Wales police with possession of an unregistered pistol contrary to s 36(1) of the Firearms Act 1996 (NSW). The offence is alleged to have been committed on about 21 August 2017. On that date police executed a search warrant at a small industrial unit in the Sydney metropolitan area, wherein they located a motor vehicle containing five firearms and a quantity of ammunition. The vehicle was impounded. Pursuant to a further warrant issued on 22 September 2017 it was examined more closely and more weapons were found secreted within it. One of these was a Glock self-loading pistol. From the trigger guard of this weapon there was recovered a DNA sample that has been matched to D108. This is the weapon with respect to which he has been charged. 2. D108 is contesting the charge concerning the Glock pistol. He was granted bail approximately two months after his arrest, on 25 July 2019. He is to appear again at Campbelltown Local Court in relation to the charge on 13 August 2019. 3. The Commission has issued a summons under s 24 requiring D108 to attend before it on 26 August 2019 at a hearing to give evidence and to produce any document or other thing as required by the executive officer presiding. Some of the weapons found secreted within the motor vehicle have been linked to another serious offence that is under investigation. D108 has not been charged with that other serious offence and it is not envisaged that he will be. However the Commission wishes to question him about the other offence. It is considered that evidence from D108 concerning the circumstances surrounding his contact with the Glock pistol are likely to assist in the investigation of the other matter. 4. Section 39(1) of the Crime Commission Act provides that a witness who is questioned under s 24 is not excused from answering any question or producing any document or thing on the ground of privilege against self-incrimination. The Act contains a number of provisions intended to prevent prejudice being occasioned to a witness such as D108 in a subsequent trial, as a result of answers being given under compulsion. Those provisions may be summarised as follows: 1. Sections 21 and 21A: examinations under s 24 are required to be held in private. The Commission may give directions as to who should be present. By force of s 21A, when the witness is facing a current charge and is examined by leave of this Court pursuant to s 35A, the Commission is bound not to allow any member of an investigative agency who is involved in the investigation of the current charge to attend the examination. 2. Section 35A(3): the evidence given by the witness or any document or thing produced by him is not admissible against him. This is a stronger provision than s 39(1), which applies to the general class of witnesses examined compulsorily. Pursuant to s 39(1) a witness' immunity from use of the evidence against himself depends upon objection being taken pursuant to subs (3)(b). Alternatively the officer presiding at the hearing may declare that all evidence provided will be regarded as having been produced over objection (see subs (6)). 3. Section 39A(2)(d) and (3): when leave is given by this Court under s 35A, derivative evidence obtained as a result of answers given or documents or things produced is inadmissible against the witness in relation to the subject matter of the offence with which he was charged when the evidence was taken, although such derivative evidence is not inadmissible in relation to another offence with which he had not at that date been charged. 4. Section 45(1): the Commission may direct that evidence given before it and documents and things produced to it must not be published. Such a direction must be given if failure to do so might prejudice the fair trial of the witness: subs (2). 5. Section 45A: if the witness is compulsorily examined about an offence with which he is currently charged and takes objection, the Commission must not allow the evidence or any record of it to be disclosed to an investigative agency or a prosecutor involved in dealing with the current offence. 6. Section 45C(2): this section recognises that an accused may apply to a court of trial for a stay of proceedings "arising from the compulsory examination of the person before the Commission or from the disclosure of any evidence or a record of any evidence given before the Commission". Subsection (2) requires the trial court hearing such an application to take into account whether any of the following matters may have a real potential to lead to unfair consequences for the trial: (a) the questions asked and answers given during the hearing concerned, (b) whether the person was the subject of a current charge for the offence at the time of the hearing, (c) the role of any member of an investigative agency attending the hearing in the investigation of the offence, (d) the nature and results of any steps taken by members of an investigative agency in the investigation as a result of access (if any) to compulsorily obtained material, (e) the availability of independent sources of any evidence alleged to be derived from compulsorily obtained material, (f) the extent to which any prosecutor has had access to compulsorily obtained material, (g) the role in the investigation of the offence of any member of an investigative agency who has been given access to a transcript or other record of evidence. 1. The test that this Court is required to apply under s 35A(5) requires, first, that an evaluation be made of "any prejudicial effect that is likely to arise to the person's trial from the proposed questioning or requirement [to produce documents or things]". On the assumption that the statutory protections listed above are implemented there will be no prejudicial effect at all. Whether the statutory protections will be departed from, so that prejudice might arise, is a question of hypothetical future facts that cannot be foreseen. The Court cannot sensibly predict that the protections will be infringed and therefore cannot identify any likelihood at all of prejudice to the accused's trial. This will be the same on every application to the Court under this section. Having no basis upon which to predict future breach of the sections or other circumstances that might give rise to prejudice, the question whether a prejudicial effect is likely to result from compulsory examination of a person who faces a charge will always have to be answered by reference to the Act. Its provisions are static and the answer will always be the same. 2. The above observations draw upon and take into account the judgment of McCallum J in New South Wales Crime Commission v D109 [2015] NSWSC 1244. 3. There is a clear public interest in the Commission's powers of compulsory examination being used in this case, as there probably is in all cases where the Commission intends to examine a person with a view to furthering its investigation of another serious crime. Given that the Court is unable to see into the future to identify a likelihood that the protective provisions of the Act will be breached, the balance under s 35A(5) is in favour of a grant of leave. So far as I can see this will be the case, a priori, on every such application. Hence, the test prescribed in s 35A(5) seems to be for all practical purposes illusory. The process of leave being sought from this Court could be dispensed with, without loss to the statutory scheme. 4. There is a further consideration of law tending to confirm that the test in s 35A(5) is satisfied in this case and will always be satisfied. I interpret the section as requiring that the Court take into account the power of the trial judge, before whom the witness will ultimately be tried on the charge he faces at the time of the examination, to stay proceedings on the indictment or to grant other relief as necessary to avert prejudice. A permanent stay would only be ordered in an extreme case, where potential prejudice could not otherwise be addressed. More commonly, if knowledge of the evidence given under compulsion should come into the hands of a witness, investigator or prosecutor in circumstances that the trial judge should consider prejudicial to a fair trial, the evidence of the witness might be excluded or a stay might be ordered pending removal from the case of the tainted investigator and/or prosecutor and replacement of them with others who are not tainted with such knowledge. These ultimate protections make it still more clear that no tangible likelihood of prejudice can be foreseen from the present standpoint and there is therefore nothing to weigh in the scales of s 35A(5) against a grant of leave. 5. For these reasons I gave leave under the section on 12 August 2019 and made ancillary orders. ********** 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: 14 August 2019