Receiving a summons from the NSW Crime Commission can be a very daunting experience. It is very different from being invited to attend an interview at your local police station because the Crime Commission has much wider powers than NSW Police. For example, you are entitled to exercise your right against self-incrimination when being interviewed by Police.
However, no such right exists when being examined at the Crime Commission. In other words, there is much more at stake. This article will outline the basis for the issuing of a summons, and what you should expect if you ever receive a summons to attend the Crime Commission.
Can the NSW Crime Commission summons me?
The starting point for this question must be section 24 of the Crime Commission Act 2012 (NSW), which provides that the Commissioner or Assistant Commissioner with specific legal qualification may summons a person to appear before the Commission at a hearing to give evidence and to produce such documents as required.
The summons will ordinarily outline the general nature of the matters relating to the questions proposed to be asked. However, the general nature of the examination may not be disclosed to you if doing so would prejudice the effectiveness of the investigation.
What if don’t attend the hearing at the NSW Crime Commission?
A person must not fail to attend the Commission without reasonable excuse. And even if the person does attend, that person must not fail to answer a question. Also, a person must produce any document or thing as required by the summons.
Failure to do any of the above will carry a fine of $2200 or imprisonment of 2 years. The Crime Commission will most certainly prosecute you if you do not comply with the direction to answer a question at the hearing.
What happens at a NSW Crime Commission hearing?
A hearing or examination at the Crime Commission is conducted before a Commissioner or Assistant Commissioner, in a closed environment. The Commissioner will ordinarily make a direction as to who can physically be present during the hearing. There will also be counsel assisting the Commissioner, who will cross-examine you on any matter that is relevant to the investigation.
You must answer all questions truthfully as you will be required to swear an oath or take an affirmation before the hearing commences. It is also an offence punishable by five years imprisonment to give an answer which you know to be false or misleading.
Can I challenge a summons requiring me to attend a hearing at the NSW Crime Commission?
Absolutely – the decision to issue a summons is an administrative decision by the executive, and is subject to judicial review like any other administrative decision.
If you wish to challenge the making of a summons, you will have to commence proceedings in the Supreme Court of NSW and seek declaratory relief or an injunction on the following grounds:
- The summons is defective for want of disclosing the nature of the investigation
- The Commissioner did not have jurisdiction to decide upon the issuing of the summons
- The decision to issue the summons was not authorised by the Crime Commission Act
- The decision to issue the summons involved an error of law
- The decision to issue the summons involved an improper exercise of power conferred by the Crime Commission Act, or constituted an abuse of power
Unlike the Commonwealth legislative scheme for judicial review, there is no legislation governing the principles of judicial review in NSW.
I have been charged with a criminal offence. Can I still be required to answer questions at the NSW Crime Commission?
Yes, but the Crime Commission must seek leave from the Supreme Court of NSW before it can do so. This requirement is stipulated in section 35A.
In determining the question of leave, the Supreme Court must be satisfied that the prejudicial effect of being asked a question about the offence is outweighed by the public interest in using the Commission’s power to ensure a complete investigation.
Once leave is granted, then the hearing can touch upon the offences for which you have been charged.
However, section 45A provides limited rights in these circumstances. The questions that you provide must not be allowed to be disclosed to NSW Police or the Director of Public Prosecutions (DPP).
However, the Commission may still permit your evidence to be disclosed to NSW Police if it is desirable in the interests of justice and the use of the disclosed evidence is restricted.
That disclosed evidence can only be used in relation to an offence against the Crime Commission Act or for an offence that does not fall within the ambit of the investigation.
The Commission may also disclose evidence to the DPP in relation to the question of granting witness indemnity from prosecution, and undertakings by the Attorney-General.
Can my answers at the NSW Crime Commission be used against me?
In short, direct use is prohibited, but derivative use is not in specific circumstances. Section 35A(3) states that ‘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.’
Derivative evidence is not admissible against you if it was derived from evidence following a grant of leave under section 35A.
However, the rule against derivative evidence does not apply if that same evidence could have been obtained without your testimony at the Crime Commission.
Nyman Gibson Miralis specialises 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.
Contact us if you require assistance.