Lee v Attorney-General for NSW - [2017] NSWCCA 27

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Lee v Attorney General for NSW [2017] NSWCCA 27
Hearing dates: 20 February 2017
Date of orders: 09 March 2017
Decision date: 09 March 2017
Before: Hoeben CJ at CL at [1]
Latham J at [161]
Price J at [162]
Decision:
(1) The non-publication order of Judge Cogswell SC made on 22 October 2015 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) be continued until further order of the Court.

(2) That leave be granted to Do Young (Jason) Lee and Seong Won Lee pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from two judgments of Cogswell SC DCJ of 29 August 2016 and 11 November 2016 but that the appeals be dismissed.

(3) That the appeal by the Attorney General pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against the order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee be allowed and that the order prohibiting Brendan Pak from giving such evidence be set aside.
(4) That the appeal by the Attorney General pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against the temporary stay of the criminal proceedings against Do Young (Jason) Lee and Seong Won Lee be allowed and the order imposing a temporary stay of those proceedings pending the payment of costs, be set aside.
Catchwords:
CRIMINAL LAW – applicants seeking leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from refusal to grant a permanent stay of certain criminal proceedings brought against them – supplying prohibited drugs and weapon offences charged – convictions at first trial quashed by High Court and retrials ordered – additional proceeds of crime offences now charged – finding by primary judge that applicants had not demonstrated a fundamental defect giving rise to unfair consequences – applicants self-represented – some grounds of appeal misconceived – no unfairness in approach of primary judge – no basis for primary judge recusing himself on the basis of apprehended bias – applications for permanent stay refused – APPEALS BY ATTORNEY GENERAL pursuant to s 5F(2) of the Criminal Appeal Act 1912 – order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – order granting temporary stay of certain criminal proceedings pending payment of costs by DPP – no basis for finding by primary judge that Mr Pak changed his position in pre-trial interviews by NSW Crime Commission – no evidence that Mr Pak made aware of content of Seong Won Lee’s Crime Commission interviews – no proper basis for order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – appeal on that issue allowed and order quashed – in relation to temporary stay, failure by primary judge to take into account a relevant consideration – House v The King error established – fault on the part of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCCA 27
Decision Date: 09 March 2017

CaseChat Overview and Summary

In the case of Lee v Attorney-General for NSW, the applicants, Seong Won Lee and Brendan Pak, sought leave to appeal from the refusal to grant a permanent stay of criminal proceedings against them. The applicants were charged with supplying prohibited drugs and weapon offences, with their initial convictions quashed by the High Court and retrials ordered. Further charges of additional proceeds of crime were subsequently brought. The applicants were self-represented, and the primary judge found they had not demonstrated a fundamental defect that would result in unfair consequences.

The legal issues before the court included whether the applicants had demonstrated a fundamental defect in the proceedings that gave rise to unfair consequences, whether there was any unfairness in the approach of the primary judge, and whether the primary judge should have recused himself on the basis of apprehended bias. Additionally, the Attorney-General appealed the orders made by the primary judge, including an order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee and a temporary stay of certain criminal proceedings pending payment of costs by the Director of Public Prosecutions.

The court found that the applicants had not demonstrated a fundamental defect in the proceedings that would justify a permanent stay, and there was no unfairness in the approach of the primary judge. There was also no basis for the primary judge to recuse himself on the basis of apprehended bias. Regarding the orders made by the primary judge, the court found that there was no proper basis for the order prohibiting Brendan Pak from giving evidence, and the appeal on that issue was allowed. The court also found that the primary judge had failed to take into account a relevant consideration in granting the temporary stay, and the appeal on that issue was also allowed, with the order quashed. Alternatively, the court found that a different temporary stay order should have been made.

The final orders were that the applications for a permanent stay were refused, and the appeals by the Attorney-General were allowed, with the orders made by the primary judge quashed.

Orders