New South Wales Crime Commission v D109 [2015] NSWSC 1244 (28 August 2015)

Last Updated: 28 August 2015

Supreme Court New South Wales

Case Name:	New South Wales Crime Commission v D109
Medium Neutral Citation:	[2015] NSWSC 1244
Hearing Date(s):	25 August 2015
Date of Orders:	26 August 2015
Decision Date:	28 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application for leave under s 35A of the Crime Commission Act 2012 (NSW) to take evidence from an accused person in relation to the subject matter of the offences with which that person is charged granted.
Catchwords:	CIVIL LAW – examination orders – application for leave to examine an accused person under s 35A of the Crime Commission Act 2012 (NSW) – whether
Legislation Cited:	Australian Crime Commission Act 2002 (Cth) Court Suppression and Non-Publication Act 2010 (NSW), ss 7, 8 Crime Commission Act 1985 (NSW), s 13 Crime Commission Act 2012 (NSW), s 35A Crime Commission Legislation Amendment Act 2014 (NSW), s 2 Criminal Assets Recovery Act 1990 (NSW), s 31D
Cases Cited:	Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 Lee v R [2014] HCA 20; 308 ALR 252 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
Category:	Principal judgment
Parties:	New South Wales Crime Commission (plaintiff) D109 (defendant)
Representation:	Counsel: R Bhalla (plaintiff) Ex parte Solicitors: New South Wales Crime Commission (plaintiff) Ex parte
File Number(s):	2015/249937
Publication Restriction:	Pseudonym order made in respect of the defendant

JUDGMENT

1. HER HONOUR: By summons filed in court on 25 August 2015, the New South Wales Crime Commission brought an urgent application before me as duty judge for leave under s 35A of the Crime Commission Act 2012 (NSW) to take evidence from an accused person in relation to the subject matter of the offences with which that person is charged. The urgency was that the Commission’s examination of that person is presently scheduled for 1 September 2015.
2. The application was brought ex parte, as allowed under s 35A(4) of the Act, and was heard in closed court. For the protection of the defendant, I ordered that the defendant be referred to as “D109”.
3. Section 35A is one of a number of new provisions which came into force on 28 November 2014: see s 2 of the Crime Commission Legislation Amendment Act 2014 (NSW). I was informed by counsel for the Commission that the present application was the first brought under the new provisions. It is perhaps unfortunate that the application of those provisions fell to be considered for the first time in a busy duty list and without a contradictor.
4. I determined the application on 26 August 2015. Owing to the volume of other business in the duty list that day it was necessary to reserve my reasons. These are my reasons for making the orders made that date. At the time the orders were made, I indicated that the reasons would be published (so as to be available for consideration by the defendant) as soon as practicable and before the date scheduled for the examination. This judgment has accordingly been prepared under considerable pressure of time.
5. In addition to the pseudonym order, I made the following orders:
   • (1) Until further order of this Court, pursuant to s 7 of the Court Suppression and Non-Publication Act 2010 (NSW) and upon the grounds set out in ss 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 NSW Crime Commission in pursuing its investigation pursuant to the Crime Commission Act 2012 as disclosed in evidence filed in support of the summons; and
(g) the disclosure by the Court to the AFP of the longer version of the Statement of Facts tendered by the Commission for the purpose of separate proceedings in which a forfeiture order has been made against the defendant.
(2) Order 1 is to have effect throughout the Commonwealth.
(3) Leave is granted pursuant to s 35A of the Crime Commission Act 2012 to the Plaintiff, its officers and legal practitioners engaged or employed by it, to question and make requirements of “D109” during a hearing before the Commission pursuant to ss 24 and/or 29 of the Crime Commission Act 2012 in relation to the subject matter of offences he is currently charged with [identified in the order], subject to the following conditions:

The defendant must be given 5 days (including weekend days) notice of these orders prior to the questioning proceeding.
The defendant must be informed of the provisions of s 45A of the Crime Commission Act and be afforded an opportunity to take legal advice in respect of those provisions prior to the questioning.

(4) The Court notes the undertaking given to the Court on behalf of the New South Wales Crime Commission that in the event that the defendant states his intention to seek a review of these orders, the questioning will not proceed sooner than 28 days from today unless an application is filed within that period in which event the questioning will not proceed pending determination of the application for review.

6. The application relates to a person who has been charged with a number of indictable offences. The proceedings in respect of those charges have not been finalised. It is neither necessary nor appropriate for present purposes to record the circumstances in which the charges were brought.
7. Section 35A expressly contemplates the taking of evidence by the Crime Commission from a person who is the subject of a current charge for an offence. According to the second reading speech (which was handed up during argument), that and related amendments to the Crime Commission Act were introduced in response to the decisions of the High Court in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 and Lee v R [2014] HCA 20; 308 ALR 252.
8. The decision in X7 was concerned with the power of the Australian Crime Commission, a Commonwealth agency established for similar objects to those of the New South Wales Crime Commission, to examine an accused person concerning the subject matter of the offence charged against that person. The legislation under consideration was the Australian Crime Commission Act 2002 (Cth). Two questions were reserved on a case stated to the Full Court of the High Court: the first concerned the proper construction of the Act; the second concerned its validity. The Court’s determination of the first question disposed of the matter and the decision is accordingly confined to that issue. The Court held, by majority, that the Australian Crime Commission was not empowered under the terms of the Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charges laid against him. The primary judgment was written by Hayne and Bell JJ; Kiefel J agreed at [157] with short additional remarks; French CJ and Crennan J dissented.
9. The decision turned on an application of the principle of legality. Justices Hayne and Bell considered that, if the provisions of the legislation there under consideration were to permit the compulsory examination of a person charged with an offence about the subject matter of the pending charge, they would effect a fundamental alteration to the process of criminal justice: at [118]. Their Honours recognised at [119] that statute can effect such alterations but only by clear words or necessary intendment. The terms of the Australian Crime Commission Act did not expressly provide for the compulsory examination of an accused person about the subject matter of the charge. The majority held that the Act did not do so by necessary implication (at [147]).
10. The second decision referred to in the second reading speech was Lee v R. That decision related to the conduct of the New South Wales Crime Commission but was not directly concerned with the power of that agency to examine an accused person concerning the subject matter of the offence charged. Rather, the decision was concerned with the consequence of a breach of the protective provisions relating to such examinations.
11. There were two appellants in the proceedings before the High Court in that case. Neither had been charged with any relevant offence at the time he was summoned to give evidence before the Crime Commission but in each case charges were imminent. In the case of one, drug charges were laid after the dates on which he was examined by the Commission. In the case of the other, he had already been charged with firearms offences prior to his examination and, at that time, drug charges were imminent.
12. Section 13(9) of the Crime Commission Act 1985 (NSW) (now repealed) required the Commission to prohibit the publication of evidence given before it “where publication might prejudice the fair trial of a person who may be charged with an offence”. In the case of each appellant, the Commissioner made a direction in accordance with that requirement. The direction prohibited publication of the evidence given by the witness “except in such manner and to such persons as the Commission specifies”.
13. The transcripts of the two appellants’ evidence were subsequently published to the police and to the DPP. The focus of the appeal was on the fact of publication to the DPP. That had occurred in response to a request by a solicitor who was preparing the prosecution of the charges. The High Court held that the publication was “for a patently improper purpose, namely the ascertainment of the appellants’ defences”. The evidence was inadmissible at the appellants’ trial by force of the Act. However, it was submitted that there had been a miscarriage of justice since the prosecution was armed at trial with the appellants’ evidence before the Commission, contrary to the accusatorial nature of the criminal justice system considered by the High Court in X7.
14. The Court said at [32]:

Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.

15. The Court held at [51] that the publication of the transcript to the prosecutor had affected the appellants’ criminal trial in a fundamental respect without legislative authority. Specifically, the Court held that the provision of the transcripts to the prosecutor had occurred contrary to the protective purpose of s 13(9).
16. Curiously, the second reading speech for the amendments with which I am here concerned does not refer to the more pertinent decision of Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 which is another significant chapter in this field of jurisprudence. In that case, the appellants (who would later become the appellants in Lee v R) objected to being examined pursuant to s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW), asserting that the Act did not empower an examination about conduct in respect of which there were pending criminal charges. On that occasion, the High Court was constituted by a bench of seven, being the same five judges who had determined the reserved questions in X7 together with Gageler and Keane JJ. With the same division of views but with the support of the two additional judges, on this occasion the broader view of power prevailed. The Court held (by majority) that the Act empowered a court to make an order for examination about conduct that was the subject of criminal charges against the person examined: per French CJ, Crennan, Gageler and Keane JJ; Hayne, Kiefel and Bell JJ dissenting.
17. In considering the application of the principle of legality, French CJ distinguished the decision in X7, noting that “the objects and character of a compulsory examination under [the Act considered in X7] differ materially from the objects and character of a compulsory examination under [the Act considered in Lee]”: at [15]. Critical to the reasoning of the majority in Lee v New South Wales Crime Commission was the fact that the examination contemplated by the legislation would be conducted by a judicial officer, not an officer of the Commission. The fact of judicial (rather than executive) oversight of the process was considered to constitute a significant difference in the legislation which tended towards the liberal construction of its provisions: at [46] to [56] per French CJ; at [340] per Gageler and Keane JJ.
18. The legislation with which I am here concerned is a hybrid of those considerations. The questioning itself is conducted by officers of the Commission; the purpose is investigative. The role of the Court contemplated by the Act is but a blunt form of oversight; the Court is asked to make an assessment, prospectively and without hearing from the defendant, of broad notions of prejudice and public interest. I took the view that I was bound to approach that assessment on the premise that the Act deliberately and fundamentally alters the important common law principles explained by the majority in X7 without the protection of judicial oversight of the questioning considered important in Lee v NSW Crime Commission. Whether it does so validly is not for me to determine.
19. Each of the decisions in X7, Lee v New South Wales Crime Commission and Lee v R reinforces two important principles or propositions. The first is that it would be a fundamental alteration to the process of criminal justice to empower an agency such as the New South Crime Commission to conduct a compulsory examination of an accused person concerning the subject matter of any charge pending against him. The second is that, leaving aside any question of invalidity (as being contrary to Chapter III of the Constitution), Parliament can effect such a fundamental alteration but that must be done by clear words or else emerge as a matter of necessary intendment having regard to the terms of the relevant statute.
20. There is no ambiguity in s 35A of the Crime Commission Act. It is not necessary to have resort to the second reading speech to understand Parliament’s intention. It may nonetheless be noted that the speech confirms what may be readily gleaned in any event from the plain words of the Act, which is that the amendments which came into force in November 2014 were introduced so as to express in clear words or by necessary intendment Parliament’s intention to create laws that depart from the fundamental principles of our system of justice.
21. Justices Hayne and Bell in their Honours’ joint judgment in X7 expressly did not decide whether there is any relevant constitutional limitation to legislative power that would preclude such an alteration (at [119]). It would not have been appropriate to approach the present application on the premise that there is any doubt in that respect; mine is a task of obedience to the new statute.
22. Section 35A expressly contemplates that the NSW Crime Commission has power, with the leave of the Court, to summon a person who is the subject of a current charge for an offence and take evidence from that person in relation to the subject matter of the offence. The section provides:

(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.
(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.

23. Section 35A(4) makes plain that an application may be made ex parte, provided it is supported by an affidavit meeting the requirements of the section. Those requirements were met in the present case by the affidavit of an officer of the Commission, affirmed 25 August 2015. The application was accordingly properly brought in accordance with the section.
24. Section 35A(5) poses two tasks. The first is to consider whether I am satisfied that any prejudicial effect that is likely to arise to the defendant’s trial from the proposed questioning or requirement to produce a document or thing is outweighed by the public interest in the using the Commission’s powers to ensure that the matter in question is fully investigated. If I am not satisfied in those terms, there is no power to grant the leave sought. The second task is, if satisfied in those terms, to consider whether to exercise the discretion to grant leave. That discretion must be exercised judicially having regard to the objects of the Act.
25. Since the application was made ex parte (as expressly allowed under the section), there was no opportunity for the defendant to point to any specific prejudicial effect likely to arise to the trial from the proposed questioning. No specific prospect of prejudice was revealed by the content of the officer’s affidavit. I was accordingly left to assess that issue primarily by reference to the efficacy of the protections afforded by a statute which expressly fundamentally alters the process of criminal justice.
26. The new provisions of the Act provide three tiers of protection. Section 35A(3) confers what may be referred to as direct immunity; its effect is that the evidence given by D109 to the Commission will not be admissible against D109 at trial.
27. Secondly, s 39A confers what is sometimes referred to as derivative immunity. The section distinguishes between the original evidence (the questioning of the witness at a hearing before the Commission or the production to the Commission of any document or thing) and derivative evidence (any further information evidence, document or thing obtained as a result of the original evidence). Section 39A(3) provides that derivative evidence is not admissible against the witness where the witness was questioned pursuant to leave granted under s 35A in relation to the subject matter of the offence for which the witness was charged. There is an exception if the derivative evidence could have been obtained without the testimony of the witness.
28. The defendant thus has the protections of both direct and derivative immunity.
29. As explained by the High Court in X7, that is not the end of the matter. The accusatorial nature of criminal proceedings informs the question of prejudice at every stage of the proceedings. The new provisions address that principle with a series of provisions calculated to quarantine the Crime Commission’s examination from the criminal proceedings against the accused person.
30. Pursuant to s 21 of the Act, hearings of the Commission are to be held in private and are subject to direction by the Commission as to the persons who may be present. One of the amendments is s 21A, which qualifies that power by confining such direction to persons whose presence is reasonably necessary in the opinion of the presiding officer (s 21A(2)) and prohibiting any direction that would permit the presence of a member of an investigative agency who is involved in the investigation of the accused person in relation to the offence.
31. Section 45A(2) provides that the Commission must not allow any of the evidence or a record of any of the evidence to be disclosed to a member of an investigative agency or a prosecutor if that person is involved in the investigation or prosecution of the offence concerned. However, the application of that provision is triggered only upon the witness taking an objection to providing the evidence. Accordingly, I considered that any grant of leave should be subject to a condition (imposed in accordance with s 35A(6)) that the defendant should be informed of the provisions of s 45A and afforded an opportunity to obtain legal advice in respect of those provisions. Without such advice, the defendant might be ignorant of his entitlement to object to providing the evidence and so lose the protection of the section, which I regard to be an important provision in assessing any prejudicial effect likely to arise from the proposed questioning.
32. The decision of the High Court in Lee v R stands as authority that any disclosure of an accused person’s evidence given before the Commission to a person involved in the investigation or prosecution of the offence or offences with which he or she is charged could, depending on the circumstances, result in a miscarriage of justice. That is a consideration which should constrain the conduct of the persons and agencies concerned. For present purposes, however, I do not think it is appropriate to assume the protections afforded by the new provisions may be breached. The Act requires a prospective assessment of risk in circumstances where the Court has little to go on other than a theoretical consideration of the protections of the Act. In theory, those protections appear to be adequate to ensure that the Crime Commission’s examination of the defendant will be conducted by a “clean team” (to adopt the expression used in the second reading speech) and will accordingly not prejudice the criminal proceedings against the defendant.
33. By way of further protection, had it occurred to me at the time of making the orders, I would have imposed an additional condition of the grant of leave that the Commission keep a record of all persons to whom the evidence or a record of any of the evidence has been disclosed, such record to be made available for inspection by D109 upon request. Although that was not imposed as a condition of the grant of leave, it would be prudent for the Commission to keep such a record, if it does not already.
34. There is one further important protection in the Act which is the requirement, if leave is granted, for the Commission to serve notice of the grant of leave before the person is questioned in relation to the matters the subject of the grant of leave. No doubt one of the considerations reflected in that provision is the need to afford a witness an opportunity to seek review of the decision to grant leave. As already noted, the present application was brought in the Duty List on Tuesday, a week before the date on which the examination of the defendant was scheduled. Although that timing was of the Commission’s own making, it is clear from the material in support of the application that there is an operational imperative for keeping the investigation moving with a degree of expedition.
35. I was nonetheless concerned to allow the defendant a reasonable period of notice so as to afford an opportunity to seek review. The Commission sought to address that concern by giving the undertaking noted in the orders that, in the event that the defendant states his intention to seek a review, the questioning will not proceed within the period specified. Upon reflection, the period of 28 days referred to in the undertaking ought to have commenced from the date of service of the orders rather than the date on which they were made; no doubt that is a consideration to which the Commission will have proper regard.
36. Turning to the public interest in allowing questioning in relation to the subject matter of the offences with which D109 is charged to proceed, one of the requirements of the affidavit to be provided in support of an application for leave is that an officer of the Commission state his or her grounds for believing that the questioning is in the public interest notwithstanding that it relates to the subject matter of the offences. The officer’s affidavit sets out in careful detail the nature of the investigation for the purposes of which D109’s evidence is sought. For reasons I hope are obvious, it is not appropriate to record the detail of those matters in this judgment. The reasons for the officer’s belief are summarised at para 71 of the affidavit. Those reasons persuaded me that any prejudicial effect that is likely to arise to D109’s trial from the proposed questioning was outweighed by the public interest in using the Commission’s powers to ensure that the matter referred to in the notice accompanying the summons is fully investigated. In particular, the content of the officer’ affidavit revealed that D109 is likely to have valuable information in respect of a large-scale criminal undertaking of a very serious nature in which D109 appears to be a relatively small player.
37. There being no specific consideration militating against the grant of leave (accepting, as I must, that Parliament’s intention was to create a law that departs from the fundamental principles discussed by the High Court in X7 and the two Lee decisions), I determined that I should grant the leave sought on the conditions stated in the orders.

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