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Key Takeaways

The NSW Crime Commission is a Government organisation set up to gather evidence and investigate serious crimes such as money laundering, organised crime, terrorism and illegal drugs in the State of New South Wales. The Commission’s powers extend to ordering people to attend by way of a ‘summons’ to give evidence and produce documents. Failure to comply attracts up to 2 years imprisonment and/or $2,200 fine. The Crime Commission Act 2012 (NSW) also provides protection against self-incrimination. It is recommended to get legal advice and representation if summoned by the Commission to give evidence.

Corruption Watchdog | What is the NSW Crime Commission?

The New South Wales Crime Commission is a Government body which investigates and compiles evidence relating to serious crimes including homicide, money laundering, organised crime, terrorism, and drug supply.  It has extensive powers to require people to appear before the Commission to give evidence and/or produce documents or information even if it may self-incriminate. However, the Crime Commission Act 2012 (NSW) protects those giving evidence from self-incrimination unless the person gives false or misleading evidence to the Commission.

Crime and Corruption Commission | What Does the Crime Commission Do?

The Commission aims to reduce organised crime and other serious crime in NSW and has extensive powers to facilitate this purpose. It’s powers even extend to confiscating money or property that is the proceeds of crime before the case if dealt with in court proceedings. The Commission can make orders restraining interests in property suspected of being proceeds of crime.

Broadly, the NSW Crime Commission powers also extend to being able to issue search warrants, conduct examination hearings, and compel the production of information or documents.

As well as investigating serious criminal activity, the functions of the Commission include assembling and furnishing evidence to assist the NSW Director of Public Prosecutions, the Attorney-General or to the appropriate authority in the jurisdiction concerned, in the prosecution of an accused person.

It also includes furnishing reports which may include recommendations for changes in the laws of the State.

 

When Was The Crime Commission Created?

It was created in 1986 under the New South Wales Crime Commission Act 1985 (NSW), with the body now governed by the Crime Commission Act 2012 (NSW).

 

Crime Commission Statistics NSW

In the 2021–22 period, investigations by the Commission resulted in the arrest of 107 individuals, with 722 charges serious charges laid.

The Commission also made confiscation orders totalling $62,526,506 in estimated realisable value.

Furthermore, 626 intelligence and information reports by the Commission were disseminated to other law enforcement agencies.

Crime Commission Summons and Orders- What to Do

What happens if the crime commission summons you? Section 24 of the Crime Commission Act 2012 (NSW) provides that the Commissioner or Assistant Commissioner may summon a person to appear at a hearing to give evidence and to produce documents or other things. You have the right to get a lawyer to accompany you and advice you. It is recommended to get legal advice as soon as possible before attending the hearing.

The summons must set out the general nature of the matters relating to what the Commission intends to question the person on. However, it may not do so if the Commission is satisfied that it would prejudice the effectiveness of the investigation, with reference to the particular circumstances.

Crime Commission Offences and Penalties

If issued with a summons, you must not fail to attend as required by the summons, without reasonable excuse. Furthermore, without reasonable excuse, you must not fail to answer any questions, or fail to produce any document or thing as required by the summons.

Failure to do any of the above carries a maximum penalty of $2,200 fine and/or 2 years imprisonment prescribed by section 25 of the Crime Commission Act 2012 (NSW).

What Happens at the Crime Commission Hearing?

The hearing before the Crime Commission will be conducted before a Commissioner or Assistant Commissioner in a closed environment, with the Commissioner directing as to whom can be present during the proceedings.

As per section 22, a person giving evidence may be represented by an Australian legal practitioner (lawyer).

During the hearing, counsel assisting the Commissioner will cross-examine you in relation to any matter that relates to the investigation.

It is important to note that the Commissioner is not impartial like a Magistrate or Judge in a court, and that their intention in questioning is to gather evidence in relation to serious crimes.

You must answer all questions posed to you truthfully, and you will be required to swear an oath or take an affirmation (depending upon your preference) before the hearing commences. It is a crime to intentionally give false or misleading evidence at the crime commission hearing.

The Offence of Giving False or Misleading Evidence at Crime Commission Hearing

Providing evidence that you know is false or misleading is an offence carrying a maximum penalty of a $55,000 fine and/or 5 years imprisonment, if dealt with in the District Court.

Can a Crime Commission Enquiry Result in Me Being Charged and Prosecuted Later?

The matter may be dealt with summarily in the Local Court if the defendant and prosecution consent to this.

In this case, the Local Court is limited to imposing a fine not exceeding a $11,000 fine and/or imprisonment for a period not exceeding 2 years.

The questioning process at the Crime Commission is different when compared to being interviewed by police, as there is no right against self-incrimination.

In NSW, there is generally a right to silence permitting accused persons to refuse to conduct a formal interview with police, answer their questions, or provide a statement or information.

However, this is not relevant to Crime Commission proceedings, meaning you will be required to answer questions, even if it may lead to self-incrimination.

Am I Protected From Self-incrimination at the Crime Commission Hearing?

A witness summoned before the Commission at a hearing is not excused from answering any question or producing any document just because the answer or production may incriminate or tend to incriminate them, according to section 39(1).

Despite this, the Commission is able to provide immunity from prosecution which may have otherwise resulted from the contents of a person’s evidence.

Section 39(2) provides that an answer made, or document or thing produced, by a witness at a hearing before the Commission is not admissible in evidence against the person in any civil or criminal proceedings or in any disciplinary proceedings.

An exception includes where the evidence is utilised in proceedings seeking to prosecute a witness on the basis that their evidence was false or misleading.

Where you have already been charged with a criminal offence and the Crime Commission seeks to question you, the Commission is required to obtain leave from the Supreme Court of NSW.

Prior to granting leave, the Supreme Court must be satisfied that any prejudicial effect that is likely to arise in relation to the person’s trial from the proposed questioning is outweighed by the public interest in using the Commission’s power to ensure that the matter is fully investigated.

Once leave is granted, the Commission may question or seek the production of documents or other things in relation to offences for which you have been charged.

Evidence provided in these circumstances has limited uses and is unable to be disclosed to the prosecuting agency of the offence concerned unless it is desirable in the interests of justice and the use of the disclosed evidence is restricted.

It can ultimately only be used in the prosecution of an offence against the Crime Commission Act 2012 (NSW), for an offence that does not fall within the ambit of the investigation, or the prosecution of a person other than the person charged.

Published on 16/01/2023

AUTHOR Poppy Morandin

Poppy Morandin is the managing law clerk and an integral part of the team of criminal lawyers at Criminal Defence Lawyers Australia . She's also a part of CDLA's content article production team. Poppy is passionate about law reform and criminal justice.

View all posts by Poppy Morandin