crime commission privacy investigations

Author: Nyman Gibson Miralis

Subject: NSW Crime Commission

Keywords: NSW Crime Commission, search warrant, examination hearing, controlled operations, telephone intercepts, tracking devices

 

What is the NSW Crime Commission?

The NSW Crime Commission is a statutory body that is tasked with investigating and gathering evidence of serious criminal activity.

It has the following responsibilities:

– To investigate matters relating to serious criminal activities such as murder, drug supply, firearms dealing and money laundering;

– To assemble evidence to assist the NSW Director of Public Prosecutions in the preparation of the prosecution case against a suspect or an accused;

– To furnish evidence obtained in the course of investigations to the Attorney-General;

-To furnish reports in relation to organised crimes with a view of commencing investigations against them.

 

Is the NSW Crime Commission a secretive organisation?

The media has often described the NSW Crime Commission as the state’s most secretive body – and rightfully so. The Crime Commission Act 2012 (NSW) in fact gives the Commission the most far-reaching powers of any law enforcement body in the state.

While the NSW Police Force is compelled to follow strict rules of evidence and fairness, section 14 of the Crime Commission Act 2012 (NSW) gives the Crime Commission the power to do all things necessary to discharge its functions.

There seems to be few limits as to what the Crime Commission can or cannot do.

Given the breadth of its powers, any person summonsed to appear before the Commission needs to receive expert legal advice as to their rights.

 

What exactly are the powers of the NSW Crime Commission?

In order to discharge its functions, the Commission may do the following:

  • Issue a search warrant;
  • Conduct an examination hearing;
  • Compel the production of information, documents and other things;
  • All things necessary for or in connection with, or reasonably incidental to, the exercise of its functions.

 

How can the NSW Crime commission obtain a Search Warrant

Imagine receiving a knock on your door in the morning, having a search warrant served on you and then witnessing several police officers raid your house and turning everything upside down. To experience the execution of a search warrant is a harrowing experience for anyone. Under section 17 of the Crime Commission Act, the Commission has the power to issue a search warrant if there are reasonable grounds to believe that a premise contains things of a relevant kind.

Search warrants enable the police to seize all items that are reasonable and necessary to run an investigation. If a seized item will assist in the prosecution of a criminal offence, then it may be handed to the NSW Director of Public Prosecutions as well.

In most cases, items retrieved during the execution of a search warrant may become the ‘missing link’ that solidifies the strength of a prosecution case.

 

What is an Examination Hearing at the NSW Crime Commission?

Under section 24, the Crime Commission can summons a person to participate in an examination hearing. This usually involves the answering of all questions put to the person, and producing all documents as required by the Commission.

The examination hearing is rather different from a court hearing – in fact, a person has very limited rights in an examination hearing. In a court hearing, a person has the right against self-incrimination.

That is to say, they have a right to silence.

But in an examination, a person is compelled to answer every question, even if they object to doing so on the basis that the answer may incriminate them. Failure to answer any question during the examination is a criminal offence.

The Commission is also not bound by rules of evidence. This means that a person will not be protected by laws against hearsay evidence, opinion evidence and rules on credibility.

In return for a person answering all questions (even incriminating ones), section 39 excludes those answers from being used against that person in criminal proceedings.

At face value, this might seem to be a fair trade-off, but consider a situation where the Police rely on derivative-use of those answers.

For example, suppose that you gave evidence that you hid a getaway car in the forest. Even though this statement cannot be used directly against you in court, police can legitimately rely on that answer, locate the car, obtain DNA evidence, and in reliance of that DNA evidence charge you for an offence.

Here, the basis of that charge was not the answer you gave, but the fact that your DNA evidence was found in that car.  This would be entirely permissible under the law.

In the period of 2011-2012, the Crime Commission issued 132 summonses – a very large figure given each hearing goes for several hours at a time.

The Commission is therefore equipped with vast powers in conducting an examination, all of which are designed to remove a person’s right against self-incrimination.

 

Does the NSW Crime Commission have the power to compel the production of information, documents and things?

Section 29 of the Crime Commission Act permits the Commission to compel the production of documents or other things that are relevant to an investigation. Failure to do so carries a maximum term of imprisonment of 6 months.

Whilst seemingly innocent, this power can be very serious in light of the fact that the Commission may disseminate those documents to other government bodies as the Commission thinks appropriate.

As it stands, incriminating documents produced during an examination may potentially be shared with the Police or NSW Director of Public Prosecutions to bolster their case.

Even if Orders are made that the information is not to be disseminated, the inherent problem exists that police on secondment to the Crime Commission usually listen to the proceedings – even if they are not in the examination or hearing room.

In the period 2011-2012, the Crime Commission issued 1343 Notices to Produce.

 

The NSW Crime Commission has the power to do all things necessary in connection with, or reasonably incidental to the exercise of its functions

Section 14 of the Act gives the Crime Commission the power to do all things necessary to be done for or in connection with, or reasonably incidental to the exercise of its functions

This means that the powers of the Crime Commission are in no way limited or circumscribed by the Act. As long as its acts are done in connection with, or are reasonably incidental to the exercise of its functions, then that is sufficient enough a reason to justify the act.

This is why the Crime Commission has increasingly relied on other powers such as the implementation of telephone intercepts, covert operations, covert warrants, tracking devices, joint tasks and surveillance in their investigations.

 

Can the NSW Crime Commission work with other law enforcement bodies?

The Crime Commission is often engaged in collaborations with other law enforcement bodies that become Joint Task Forces. One of them is the Joint Organised Crime Group (the JOCG) – a multi-agency task force comprising of representatives from the NSW Crime Commission, the NSW Police Force, the AFP, Customs and the Australian Crime Commission.

The role of the JOCG is to investigate organised criminal activities, drug trafficking and associated money laundering. Its focus is on organised crime groups such as bikie gangs and drug syndicates. For example the NSW Police Force Asian Crime Squad established Strike Force Ballista in concert with the NSW Crime Commission in May 2012.

Cooperation was also sought from the Australian Crime Commission, Customs and the AFP – after much investigation, over 200kg of ice and heroin and 15 firearms were seized in July 2013. Seventeen people have been arrested.

 

What are typical investigative techniques used by the NSW Crime Commission?

 

Covert Search Warrants

Covert search warrants are gross violations of privacy because they authorise the execution of search warrants without the occupant’s knowledge. They are authorised under section 46C of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

They are effectively authorising the breaking and entering into premises or vehicles to gather information.

 

Controlled Operations

Controlled operations are authorised by the Law Enforcement (Controlled Operations) Act 1997 (NSW). Controlled operations are effectively undercover operations where participants received prior authority to technically break the law in order to investigate and deter crime.

Suppose for example that Joe is suspected of being a leader of a drug syndicate and getting suppliers to sell these drugs on to the streets. A Crime Commission operation may involve an undercover officer pretending to help Joe supply those drugs, or purchase drugs from him. They may also involve the use of civilian participants in criminal activity without the risk of prosecution.

 

Telephone Intercepts

The use of listening devices and telephone intercepts are authorised by the Surveillance Devices Act and Telecommunications (Intercept and Access) Act respectively.

Under these Acts, the Crime Commission can plant a listening device on an operative’s body or in premises or a vehicle to record incriminating conversations.

Similarly, telephones can be bugged and recorded. Telephones that are not in use, but are switched on can be used as listening devices.

Similarly, it is also possible to use computers to monitor and or record activity taking place near to that computer.

 

Tracking Devices

Tracking devices are electronic devices that are typically attached to vehicles to reveal the location of that vehicle at any given point in time. A tracking device can establish where and when a person has gone somewhere in that vehicle, and reduces the need for physical surveillance to remain in sight of the target at all times.

 

Are you in the NSW Crime Commission’s sights?

The Crime Commission Act provides powers that go beyond the many fundamentals rights enjoyed under our criminal justice system. Our firm has been steadfast in championing those rights.

Know what your rights and entitlements are if you have been summoned to appear before Commission. Our criminal defence specialists know how to scrutinise the conduct of the Crime Commission, so as to maintain accountability and protect your rights.

 

Nyman Gibson Miralis are experts in challenging the NSW Crime Commission’s power of compulsory examination in the Court of Appeal, Court of Criminal Appeal and the High Court of Australia. If you require assistance, contact one of our expert criminal defence lawyers