NSW Crime Commission
The NSW Crime Commission has two main functions – The investigation of serious crime and asset seizure and forfeiture. This article answers commonly asked questions in relation to the investigative functions of the commission including: Do I have to attend? Do I have to answer questions? What will happen at the examination? Do I have to incriminate myself?>Do I need a lawyer
Do I have to attend?
If you receive a summons from the NSW Crime commission to be a witness you must attend. If you don’t attend the NSW Crime commission a warrant for your arrest may be issued. You can also be fined $2,200 and/or go to gaol for two years. Even on days you are not required as a witness you still must attend the hearing unless excused. If you fail to attend on those days you can be fined $1,100 and/or go to gaol for six months.
Do I have to answer questions?
During the hearing you are required to answer questions, and/or provide documents, or other things. If you don’t answer questions or hand over documents required you can be fined $2,200 and/or go to gaol for two years.
What will happen at your examination?
During the hearing you are required to take an oath or affirmation to tell the truth. You must answer all questions, and/or provide documents. You will be examined and cross examined by members of the Commission. When answering these questions you must tell the truth, even if the answer is self-incriminating. If you are tell lies (perjury) or mislead the NSW Crime commission you can face a fine of $5,500 and/or five years in gaol.
Protection against self incrimination
Section 18B of the NSW Crime Commission Act 1985 states that a witness summoned to attend the Commission at a hearing is not excused from answering any question or producing any document on the ground that the answer or production may incriminate or tend to incriminate the witness. So you must answer questions even if your answers will incriminate you.
Section 18B (2) states that an answer made, or document 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.
However, section 18B (3) states the evidence is admissible in proceedings for contempt under the Act or if the witness does not object to giving an answer or producing a document. Therefore it is most important that you OBJECT to every question. If you don’t because you don’t know you can or you forget the evidence can be used against you.
If you do object to a number of questions the member who is presiding at the hearing may declare that all or any classes of answers given by a witness or that all or any classes of documents or other things produced by a witness will be regarded as having been given or produced on objection by the witness, and there is accordingly no need for the witness to make an objection in respect of each such answer, document or other thing.
Do I need a lawyer?
Yes. The member of the commission is not independent like a magistrate or judge. They are employees of the commission. They are keen to obtain evidence from you to solve a crime. Quite often the member will ask you questions. The person cross examining you also is employed by the commission and is usually an investigator. They will ask probing questions, which you must answer. Without a lawyer to protect you, you are likely not to object to offensive or misleading questions.
In one case a witnesses evidence in a murder examination was misquoted and the investigator was trying his hardest to prove the witness was lying based on this misquoted evidence. We objected to the evidence and the evidence was played back and his true answer given. This greatly assisted the witness who appeared confused and anxious.
An experienced lawyer will now what questions are unfair and raise objections when needed. They will ensure your interests are protected as best they can be.
Non disclosure of evidence
At the end of the hearing the Commission normally order that no information provided in the hearing is to be published. If you do publish this information, you face a maximum fine of $5,500 and/or 12 months in jail (gaol).
The NSW Crime commission only investigates matters. They pass their findings onto the DPP, who are able to prosecute on behalf of the State. Since there are no judicial findings, there is no appeal process available to the NSW Crime commission hearing.
WHERE TO NEXT?
If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.