NSW Crime Commission v D163 [2020] NSWSC 812

NSW Crime Commission v D163 [2020] NSWSC 812

Orders 1 and 2(b) were vacated because the Commission needed to disclose material information about D163's evidence to the DPP to enable the DPP to comply with its disclosure obligations in pending criminal trials; non-disclosure risked unfair trials and any resulting convictions being set aside. There was no relevant prejudice requiring D163 to be heard because the Commission's s 45 non-publication direction remained in effect, subject only to variation permitting disclosure to the DPP, and any further disclosure beyond the DPP would give D163 an opportunity to be heard.

Jurisdiction
Australia
Judgment Date
26 June 2020
Procedural Posture
Notice of Motion to Vacate Suppression and Non Publication Orders in Crime Commission Proceedings / Procedural Ruling on Ex Parte Application
Outcome
Orders 1 and 2(b) of the orders made on 15 September 2015 were vacated; the Court noted that the Commission's non-publication directions remain in effect.
Legal Topics
['variation or Vacation of Non Disclosure Orders' "investigative Agencies' Duty of Disclosure" 'disclosure to the Commonwealth Director of Public Prosecutions' 'non Publication Directions Under the Crime Commission Act 2012 (nsw)']
['criminal Law' 'crime Commission Proceedings' 'suppression and Non Publication Orders'] ['variation or Vacation of Non Disclosure Orders' "investigative Agencies' Duty of Disclosure" 'disclosure to the Commonwealth Director of Public Prosecutions' 'non Publication Directions Under the Crime Commission Act 2012 (nsw)']

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Procedural Posture

Notice of Motion to Vacate Suppression and Non Publication Orders in Crime Commission Proceedings / Procedural Ruling on Ex Parte Application

Legal Issues

  1. 1 ["Whether orders 1 and 2(b) made on 15 September 2015, requiring use of the pseudonym D163 and prohibiting disclosure or publication of the defendant's name, should be vacated so the Commission can disclose information to the Commonwealth Director of Public Prosecutions." 'Whether the application could be determined ex parte and in closed court without hearing from D163.' "Whether vacating the orders would cause relevant prejudice to D163 given the Commission's non-publication direction under s 45 of the Crime Commission Act 2012 (NSW) remained in effect."]

Ratio Decidendi

Orders 1 and 2(b) were vacated because the Commission needed to disclose material information about D163's evidence to the DPP to enable the DPP to comply with its disclosure obligations in pending criminal trials; non-disclosure risked unfair trials and any resulting convictions being set aside. There was no relevant prejudice requiring D163 to be heard because the Commission's s 45 non-publication direction remained in effect, subject only to variation permitting disclosure to the DPP, and any further disclosure beyond the DPP would give D163 an opportunity to be heard.

Court Disposition

Orders 1 and 2(b) of the orders made on 15 September 2015 were vacated; the Court noted that the Commission's non-publication directions remain in effect.

Orders

  • ['The Court vacates orders 1 and 2(b) of the orders made on 15 September 2015 in these proceedings.' "The Court notes that the defendant is no longer the subject of the charges which necessitated the Commission's application for leave pursuant to s 35A of the Crime Commission Act 2012." 'The Court notes that the...