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 DPP in original trials not of the kind to justify a temporary stay – appeal allowed and order granting temporary stay quashed – alternatively, a different temporary stay order should have been made – appeals by Attorney General allowed.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW) – ss 193B(2), 249C and 307A
Criminal Appeal Act 1912 (NSW) – s 5F(2), 5(F)(3)(a)
Criminal Assets Recovery Act 1990 (NSW)
Director of Public Prosecutions Act 1986 (NSW) – s 29
Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1) and 25(2)
Firearms Act 1996 (NSW) – s 7(1)
Evidence Act 1929 (SA) – s 67
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:

Bienstein v Bienstein [2003] HCA 7; 195 ALR 225
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455
House v The King [1936] HCA 40; 55 CLR 499
Jago v District Court (NSW [1989] HCA 46; 168 CLR 23
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; 232 A Crim R 337
Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302
R v Curtis [2014] NSWSC 1582
R v Sellers; R v McCarthy [2015] NSWCCA 76; 89 NSWLR 155
Re: Polites; Ex Parte the Hoyts Corporation Pty Ltd [1991] HCA 25; 173 CLR 78
Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625
Romolo v R [2016] NSWCCA 240
SD v New South Wales Crime Commission [2013] NSWCA 48; 84 NSWLR 456
Williams v Spautz [1992] HCA 34; 174 CLR 509
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92

Category:

Principal judgment

Parties:

Do Young Lee – Applicant and Cross-Respondent
Seong Won Lee – Applicant and Cross-Respondent
Attorney General for NSW – Respondent and Cross-Appellant

Representation:

Counsel:
Applicants-Cross-Respondents – Self represented
W Abraham QC/Dr D Kell SC – Respondent and Cross-Applicant

  Solicitors:
Applicants-Cross-Respondents – Self represented
Crown Solicitor NSW – Respondent-Cross-Appellant

File Number(s):

2009/280798;2009/276079;2010/119443

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

29 August 2016

Before:

Cogswell SC DCJ

File Number(s):

2009/280798;
2009/276079;
2010/119443

Judgment

1. HOEBEN CJ at CL:

Nature of application

The applicants pursuant to s 5F(3)(a) of the Criminal Appeal Act1912 (NSW) seek leave to appeal from two judgments of Cogswell SC DCJ of 29 August 2016 and 11 November 2016. Cogswell SC DCJ refused to grant a permanent stay of certain criminal proceedings which have been brought against them.

2. The cross-appellant pursuant to s 5F(2) of the Criminal Appeal Act has appealed against two orders made by Cogswell DCJ in those judgments. Those orders relate to the prohibition of Brendan Pak from giving evidence in the prosecution of Seong Won Lee and a stay of certain criminal proceedings until the DPP pays the reasonable costs of both applicants in relation to what has been described as the “first trial”.

Factual background

3. It is the Crown case that on 25 February 2009 police stopped a vehicle that was travelling at speed on General Holmes Drive, Mascot. Mr Jason Lee was a passenger in the rear of the vehicle. He produced from his pocket a large amount of cash. A search of the vehicle located, amongst other things, cash, a firearm and $175,000 worth of casino chips. Jason Lee and a co-accused were charged with offences. Jason Lee later voluntarily participated in an interview with Police.

4. Arising from the vehicle stop, Jason Lee was indicted on two counts to the following effect:

1. On 25 February 2009 Jason Lee did possess proceeds of crime, being $95,905.00 cash, in circumstances where he knew the money was proceeds of crime; and

2. On 25 February 2009 Jason Lee did possess proceeds of crime, being $175,000.00 worth of Star City casino chips, in circumstances where he knew $175,000 worth of casino chips were proceeds of crime.

5. On 7 December 2009 Police executed a search warrant at an apartment in Lachlan Street, Waterloo. During the search, Police discovered a number of firearms and firearms accessories, a quantity of white powder (later determined to contain pseudoephedrine) and $1,147,000.00 in cash. Some of these items were found in the laundry of the apartment; others were found in the locked main bedroom, together with papers in the name of Jason Lee.

6. Jason Lee was charged with offences relating to the weapons, drugs and cash found in both the laundry and the bedroom of the apartment. He was also charged, on 13 May 2010, with two counts of supplying prohibited drugs (contrary to ss 25(1) and 25(2) of the Drug Misuse and Trafficking Act1985 (NSW) respectively) following analysis of washing powder found at the Waterloo unit. At the first trial, the offences relating to the cash and casino chips were severed from the indictment. However, the cash found was admissible in relation to the drug offence and was led at the first trial.

7. In that first trial, in March 2011, Jason Lee was convicted on all counts relating to items found in the bedroom and of supplying the drugs found in the laundry. He was acquitted of the firearms and weapons charges, but found guilty of possessing a pistol, being a six chamber revolver.

8. Seong Won Lee, who lived in the apartment at the time and arrived during the execution of the warrant, was charged with several offences relating to the weapons and drugs found in the laundry. At the joint trial with his father in March 2011, he was convicted on all counts relating to the weapons and of knowingly taking part in supplying the drugs.

9. Judge Solomon sentenced both applicants to lengthy prison terms. Jason Lee was sentenced to 13½ years imprisonment with a non-parole period of 9½ years. Seong Lee was sentenced to 8½ years imprisonment with a non-parole period of 5½ years.

10. Jason Lee is yet to face trial on the proceeds of crime charge relating to the cash of over $1 million dollars found in the unit and the cash and casino chips found in the car.

11. Before the joint trial each of the applicants had been compulsorily examined by the NSW Crime Commission (Commission). Jason Lee was examined on 26 November 2009 and 1 December 2009. Seong Lee was examined on 16 December 2009.

12. The applicants appealed to the Court of Criminal Appeal against their convictions. An important issue in the appeal was the conduct of the Commission. How it became an issue is described by Basten JA in Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; 232 A Crim R 337:

“12 Each of the appellants had, prior to trial, been summoned to appear at a hearing of the Crime Commission for examination, pursuant to s 16 of the New South Wales Crime Commission Act 1985 (NSW) ("the NSW Crime Commission Act"). Each contended that his convictions involved a miscarriage of justice because a transcript of his evidence before the Commission had been released to the Director of Public Prosecutions before the trial. …

17   The Commission exercised a number of powers, namely:

(a)    requiring each of the appellants to attend a hearing before the Commissioner and answer questions;

(b)    in respect of Mr Jason Lee, requiring production of documents, and

(c)    releasing the transcripts (and produced documents) to the Director of Public Prosecutions for inclusion in the prosecutor's brief on the trial of the appellants.

18   Broadly speaking, each step was said to be beyond the powers of the Crime Commission and, in that sense, unlawful. To understand those submissions it is necessary to consider both the statutory structure within which the Crime Commission operated and the chronology of events in respect of each appellant.

19   One aspect of the appellants' cases was common and did not change. Both contended that the consequence of the unlawful conduct of the Crime Commission was that a risk of prejudice was created, so that neither appellant obtained a fair trial. ...”

13. The Court of Criminal Appeal dismissed the applicants’ appeals concluding that the release by the Commission of the interview transcripts and Jason Lee’s documents to the Director of Public Prosecutions (DPP) did not produce any practical unfairness resulting in an unfair trial.

14. The applicants appealed against their convictions to the High Court again submitting that their convictions involved a miscarriage of justice because the transcript of their evidence before the Commission had been released to the DPP before the trial. The applicants were successful. The High Court found that each applicant’s “trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession” and that a miscarriage of justice had occurred (Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455). The High Court quashed the convictions and ordered a retrial for each applicant.

The trials/indictments that the applicants still face

15. In the Court of Criminal Appeal proceedings Basten JA conveniently summarised the particular counts faced by each of the applicants arising out of the first trial and the outcome as follows:

“6   By indictment dated 31 January 2011, the Director laid eight charges, all of which were said to have occurred on 7 December 2009 at Waterloo. In short form they were as follows:

(1)    possess a prohibited firearm, namely a submachine gun (both appellants);

(2)    possess a prohibited weapon, namely a silencer (both appellants);

(3)    possess a prohibited weapon, namely two firearm magazines (both appellants);

(4)    possess a prohibited weapon, namely a brass catcher (both appellants);

(5)    possess a pistol, namely a six chamber revolver (Mr Jason Lee);

(6)    supply a prohibited drug, namely pseudoephedrine, in an amount not less than the large commercial quantity (both appellants);

(7)    knowingly take part in the supply of a large commercial quantity of pseudoephedrine (Mr Seong Won Lee), and

(8)    supply not less than the large commercial quantity of pseudoephedrine (Mr Jason Lee).

7   On each of counts 1-4, being the firearms counts relating to items found in the laundry of the unit in Waterloo, Mr Seong Won Lee was convicted and Mr Jason Lee was acquitted. Mr Seong Won Lee was also found guilty on count 7, but acquitted on count 6. Thus, Mr Seong Won Lee was acquitted of supply, but convicted of knowingly taking part in the supply of the drugs located in the laundry.

8   Mr Jason Lee was found guilty on counts 5, 6 and 8. Counts 5 and 8 (brought only against Mr Jason Lee) related to the weapon and drugs found in the locked bedroom. Count 6 related to a deemed supply of the pseudoephedrine located in the laundry. Thus, the jury acquitted Mr Jason Lee of the four charges relating to the firearms found in the laundry, but found him guilty in respect of supply of the pseudoephedrine found in the locked bedroom and that found in the laundry.”

16. Arising from the search of the Waterloo premises, Jason Lee faces two indictments. The first indictment, which relates to the retrial (trial 1), contains counts to the following effect:

1. On 7 December 2009 at Waterloo Jason Lee possessed a pistol (six chamber revolver) contrary to s 7(1) of the Firearms Act 1996 (NSW);

2. On 7 December 2009 at Waterloo Jason Lee did supply a prohibited drug (pseudoephedrine) being an amount not less than the large commercial quantity for that drug (Drug Misuse and Trafficking Act, s 25(2)) (the 31.4 kgs found in the laundry); and

3. On 7 December 2009 at Waterloo Jason Lee did supply a prohibited drug (pseudoephedrine) being an amount not less than the large commercial quantity for that drug (Drug Misuse and Trafficking Act, s 25(2)) (the 13.57 kgs found in the main bedroom).

17. The second indictment against Jason Lee contains one offence (trial 2), namely:

1. On 7 December 2009 at Waterloo Jason Lee did possess proceeds of crime being the sum of $1,147,000.00 cash, knowing that the sum was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW).

18. Jason Lee also faces two counts of knowingly being in possession of the proceeds of crime (Crimes Act), s 193B(2)) in respect of (i) $95,905 cash; and (ii) $175,000 worth of Star City casino chips found following the vehicle stop on 25 February 2009.

19. Arising from the search warrant of the Waterloo premises, the indictment in respect of Seong Lee contains five counts to the following effect (Trial 1):

1. On 7 December 2009 Seong Lee did possess a prohibited weapon (a sub-machine gun) contrary to s 7(1) of the Firearms Act;

2. On 7 December 2009 Seong Lee did possess a prohibited weapon (silencer) without permit contrary to the Weapons Prohibition Act 1998 (NSW) s 7(1);

3. On 7 December 2009 Seong Lee did possess a prohibited weapon (two firearm magazines) without permit contrary to the Weapons Prohibition Act, s 7(1);

4. On 7 December 2009 Seong Lee did possess a prohibited weapon (brass catcher) without permit contrary to the Weapons Prohibition Act, s 7(1); and

5. On 7 December 2009 at Waterloo, Seong Lee did knowingly take part in the supply of a prohibited drug (pseudoephedrine) being an amount not less than the large commercial quantity for that drug contrary to the Drug Misuse and Trafficking Act, s 25(2).

20. Before Cogswell DCJ, each of the applicants filed a motion asking the court to permanently stay their prosecution on the charges in trial 1. In addition, Jason Lee sought a permanent stay of his prosecution on the two indictments on which he has not yet faced trial – the proceeds of crime charges from the car stop on 25 February 2009 and from the Waterloo unit on 7 December 2009. The applicants also sought an order that the DPP pay their appeal costs. If they did not obtain a permanent stay, the applicants sought a series of alternative remedies.

21. The proceedings before Cogswell DCJ were conducted on behalf of the State by the NSW Attorney General. This was because the DPP had requested under s 29 of the Director of Public Prosecutions Act1986 (NSW) that the Attorney General exercise the DPP’s function in relation to these applications. It was made clear to his Honour that the DPP would be conducting the prosecutions if they proceeded.

22. The evidence before Cogswell DCJ was relatively uncontroversial. The applicants identified the transcripts of their compulsory examinations which they said were unlawfully provided to other people by the Crime Commission and documents which they both compulsorily produced at those examinations. There was evidence from members of the Commission and persons who had been involved with the first trial, in particular Ms Garrity, who was the solicitor who had the conduct of the matter on behalf of the DPP.

23. His Honour was told how the evidence against the applicants would be presented if the trials were allowed to proceed.

24. The trials of the applicants, in respect of the firearms and drug offences, are based on the fact that firearms and drugs were found during the execution of a search warrant at the Waterloo premises associated with each of them, as well as other incriminatory documents and circumstances. For example, in the case of Jason Lee, his fingerprints were found on incriminating items, including a document entitled “How to Cook Meth”, which was in the locked main bedroom in the unit that also contained related documents in his name. Some of the firearms and large quantities of drugs and cash were located in that room. The Crown relies also upon the evidence of Brendan Pak, who gave evidence at the first trial that implicated the applicants in the supply of pseudoephedrine (trial 1). Judge Cogswell in considering the availability of independent sources of evidence, not said to be derived from compulsory obtained material, concluded “[t]here is an independently strong case against both of the accused” (August judgment at [93]).

25. The further trial of Jason Lee on proceeds of crime charges (trial 2) similarly relies principally on the fact of large quantities of cash found at the Waterloo premises during the search. The further trial of Jason Lee (trial 3) on two counts of proceeds of crime charges similarly relies on the finding of large quantities of cash and Star City Casino chips in the vehicle stop on 25 February 2009.

26. In the trials that Jason Lee faces the Crown does not propose to adduce evidence of what Jason Lee said when examined by the Commission or to tender documents that Jason Lee produced to the Commission. Similarly, in respect of the trial that Seong Lee faces, the Crown does not propose to adduce evidence of what Seong Lee told the Commission. A completely different legal team will present the Crown case on behalf of the DPP.

27. By amended notices of motion, dated 6 July 2015, each applicant sought a permanent stay of the criminal proceedings brought against him.

28. Each applicant also sought alternative orders in the event that the permanent stay was not granted, and also an order for a temporary stay of proceedings pending payment by the DPP of the reasonable costs of their first criminal trial, the appeal to the CCA, the special leave application and the appeal to the High Court of Australia ("the temporary stay application").

20. The hearing of the motions took place, before Cogswell DCJ on various dates in October 2015, November 2015, April 2016 and June 2016. For the most part, the applicants were represented by counsel and instructing solicitors before his Honour.

21. On 29 August 2016 his Honour delivered judgment on the motions. His Honour refused the applications for a permanent stay of the criminal proceedings against each applicant. His Honour concluded that each applicant had not demonstrated that there was a fundamental defect giving rise to irremediable unfair consequences. His Honour further held that in any balance of competing public interest, the scales were tipped "decisively" against a permanent stay for Jason Lee, and that, although not as decisively, the scales were "clearly tipped" against a permanent stay for Seong Lee.

22. In refusing the applications for a permanent stay, his Honour referred to well-established authority to the effect that the granting of a permanent stay was a rare and exceptional remedy, available only where no alternative means are available to remedy the defect alleged, and that the granting of a permanent stay is tantamount to the provision of a continuing immunity from prosecution (August judgment at [43] – [50]).

23. Subsequent to the judgment of Cogswell DCJ this Court in Romolo v R [2016] NSWCCA 240 recently emphasised the exceptional nature of the remedy of a permanent stay. In Romolo Button J (Hoeben CJ at CL and N Adams J agreeing) said:

“22   First, it is well-known that a permanent stay is an extraordinary remedy, and indeed a remedy of last resort. It is true, as Leeming JA said at [1] in TS v The Queen [2014] NSWCCA 174, that the granting of such a stay is not an example of a court declining to exercise jurisdiction, but rather an example of it decisively doing so. Still and all, the effect of such an order is that a charge sought to be brought by the executive (in the form of the CDPP) is unable to be determined in that part of the judicature in which the Constitution or the legislature has invested jurisdiction. And the practical effect is that an accused person is granted a permanent immunity from prosecution. That abnegation of the usual constitutional arrangements of this country, combined with the extraordinary practical outcome, means that the remedy must be reserved to truly exceptional cases: see Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [18].”

33. Judge Cogswell rejected the applicants’ claims for alternative orders in their notices of motion. An exception was an order to the effect that Mr Brendan Pak not be permitted to give evidence at the trials. His Honour ordered ultimately that “Brendan Pak be prohibited from giving evidence in the prosecution of the applicant Seong Lee.” The Attorney General accepted that the effect of this order is to prevent Brendan Pak giving evidence at any joint trial of Seong Lee and Jason Lee.

34. Judge Cogswell also acceded at least in part to the applicants’ claim for a temporary stay of criminal proceedings pending the DPP paying the applicants’ reasonable legal costs. His Honour ordered that:

“Any further hearing in the criminal proceedings against both applicants in relation to the charges in the indictment, which was the subject of the first criminal trial in the District Court, be stayed until such time as the DPP pays the reasonable costs of both applicants in relation to that first trial. The stay applies except insofar as any appeal or cross-appeal from these orders.” (Judgment 29 August 2016, as varied on 11 November 2016)

35. Both the order preventing Brendan Pak from giving evidence and the order imposing a temporary stay pending payment of legal costs by the DPP are the subject of what is in effect a cross-appeal by the Attorney General.

The applicants’ application for leave to appeal

36. The applicants have each filed notices of appeal/applications for leave to appeal dated 14 October 2016 and 7 December 2016. In addition, the applicants did on 13 January 2017, file joint written submissions in support of their applications. Pursuant to s 5F(3)(a) of the Criminal Appeal Act1912, the applicants need leave from this Court in order to appeal against the order made by Judge Cogswell refusing to permanently stay the criminal proceedings against each of them.

37. The written submissions of 13 January 2017 do not appear to have been prepared by a lawyer. When the matter came before the Court for the hearing of the applications for leave to appeal on 20 February 2017 the applicants were in attendance but were not legally represented.

38. In their written submissions, the applicants assert that they are representing themselves because they have “no legal fees available”.

39. On that issue, the Attorney General advised that on 11 November 2016 the applicants indicated to Judge Cogswell that Legal Aid had been refused on the basis that they had assets, in particular a million dollar property which they said they were having difficulty selling (Transcript, 11 November 2016). On 11 November and 23 November 2016 Judge Cogswell advised the applicants to arrange to have any lawyer they may want to engage, contact the DPP to ascertain whether an advance could be provided to them from the funds that would be needed by the DPP to discharge the temporary stay and for the purposes of funding their legal representation for their applications to the Court of Criminal Appeal.

40. The Attorney General further advised the Court that on 22 November 2016 the Office of the DPP had sent an email to the applicants indicating that the Director would consider a request to advance funds if a letter from lawyers representing them, or indicating an interest in representing them, was received together with an estimate of their costs for the proceedings in the Court of Criminal Appeal. At the further mention of the matter before Judge Cogswell on 23 November 2016 attended by the applicants, a solicitor from the Office of the DPP confirmed that offer. The Attorney General advised this Court that as of the date of the hearing of the appeal, the DPP had not received any such request by any lawyers indicating an interest in representing the applicants. This was confirmed to the Court by the applicants.

41. It would be fair to say that the applicants’ written submissions are difficult to understand. There appear to be five grounds of appeal.

1. False and misleading;

2. Altering the evidence;

3. Changes to the judgment;

4. Involvement by the Commission – assertions relating to the settlement of civil proceedings with the Commission and allegations that the applicants’ compulsory examination transcripts have been “tampered with”.

5. Bias on the part of Judge Cogswell.

Ground 1 – “False and misleading”

42. This ground appears to be directed to the proceeds of crime charges against Jason Lee arising out of the vehicle stop on 25 February 2009. Those charges were the subject of a stay granted on 16 February 2012 by a Magistrate in the Local Court before committal. Subsequently, on 3 May 2012, the DPP filed an ex officio indictment in respect of those charges in the District Court. In the proceedings before Judge Cogswell no point was taken by the applicants' counsel that these proceeds of crime charges were not properly before the District Court.

43. By Ground 1, the applicants alleged that the DPP has, in some manner, "misled" the Court and/or the applicants with "false documents" and "false information" and has contravened ss 249C and 307A of the Crimes Act 1900 and s 67 of the Evidence Act (SA) 1929 (AWS at [10], [16], [17], [19] – [20]).

44. At AWS [16], the applicants submitted that the proceeds of crime charge had been the subject of a settlement with the Commission. It was therefore wrong and the DPP was seeking to mislead the court, by listing that matter for hearing in August 2017.

Consideration

45. This ground of appeal is based on a misunderstanding. Jason Lee has not yet faced trial in respect of the proceeds of crime charges. On 25 November 2016 the District Court listed those matters for trial on 21 August 2017 with a 10 day estimate (the proceeds of crime charges arising out of the execution of the search warrant are listed for trial on 4 September 2017.)

46. The reference by the applicants to a settlement appears to be a reference to civil proceedings in the Supreme Court brought by the Commission against the applicants under the Criminal Assets Recovery Act 1990 (NSW) (CARA), which were the subject of a settlement on 30 October 2015. A copy of the consent orders made by the Supreme Court (Campbell J) in those proceedings on 30 October 2015 is at AB, vol 15, tab 118. The Commission is an entity separate from the DPP and is not empowered to discontinue criminal proceedings that are being prosecuted by the DPP. The consent orders that the Supreme Court made on 30 October 2015 relate only to the matters under the CARA and have nothing to do with the proceeds of crime criminal charges which have been fixed for hearing on 21 August 2017.

47. Ground 1 has not been made out.

Ground 2 – Altering the evidence

48. Ground 2 appears to be directed at Judge Cogswell's finding that the conduct of the ODPP committals solicitor, Ms Victoria Garrity (in requesting from the Commission, via inducted staff, copies of the transcript of the compulsory examinations of Seong Lee and Jason Lee) was not done with any improper motive. It is not clear in that context how any evidence was altered. There is also a bare assertion that the DPP has contravened s 317 of the Crimes Act without any particularisation.

Consideration

49. Judge Cogswell heard evidence from Ms Garrity, who was subject to cross-examination. As a result, his Honour made no adverse findings about her conduct and regarded it as "understandable" and not done with any improper motive. Those findings were open to his Honour and nothing said by the applicants in their written submissions has placed that conclusion in doubt.

50. This ground of appeal has not been made out.

Ground 3 – Changes in the judgment

51. The applicants note that after his Honour gave judgment on 29 August 2016, the Attorney General requested clarification of the orders. The applicants submit that what his Honour did was not to clarify the orders which he had made but to make different orders. The applicants further submit that they have been disadvantaged by the change in the orders in that a trial date involving Mr Jason Lee has been set without them having received any money by way of legal costs and that Brendan Pak, as a result of the change in the orders, will unfairly be able to give evidence in the proceedings against Jason Lee.

Consideration

52. The chronology of what occurred makes it clear that this ground of appeal has not been made out.

53. On 29 August 2016 Judge Cogswell delivered the principal judgment and the orders then made by him were as follows:

"a)    In each case I refuse the applicants' applications for a permanent stay of proceedings.

b)   In each case I order that any further hearing in the criminal proceedings against both applicants be stayed until such time as the DPP pays the reasonable costs of both applicants' first criminal trial, appeal to the Court of Criminal Appeal, special leave application and appeal to the High Court of Australia.

c)   I refuse all the relief sought in the applicants' respective second amended notices of motion, except in each case para 9 and in that regard I make an order that Brendan Pak be prohibited from giving evidence in the prosecution of both applicants.'' (August judgment at [149])

54. Following delivery of judgment, at the request of the Attorney General, the matter was listed for mention on Thursday, 29 September 2016 in order to seek clarification of certain aspects of his Honour's orders. A transcript of the mention on 29 September 2016 is at AB, vol 3, tab 57. Although the applicants were not legally represented, Ms Younes, a solicitor, appeared for them on what was said to be an amicus basis.

55. Counsel for the Attorney General raised four matters on which clarification was sought, and agreed to prepare a written note about those matters for service on the applicants. His Honour made directions to the following effect:

"1.   List the matter for mention on Friday, 4 November 2016 at 2:15pm.

2.   Direct that a transcript of today's proceedings be emailed to me, Counsel and Ms Younes.

3.   Direct that the legal representatives of the respondent [i.e. the Crown] file and serve a note summarising their argument on the points raised today on or before 10 October 2016.

4.   The applicants to file and serve a note in response to the respondent by Friday, 28 October 2016.

5.   Note that in the event there remains no issue to be determined the Court will notify the parties that the mention on 4 November 2016 will not proceed. Otherwise, the mention on 4 November 2016 will be for the purpose of fixing a date to determine any outstanding issues.

6.    Direct that the stay ordered in paragraph 149(b) of the Judgment, subject to further direction by me, does not apply to any criminal proceedings against the applicant which have not yet been prosecuted to a trial.”

56. Consistent with those directions, on 10 October 2016 the Attorney General filed and served a five page note in connection with the matters raised at the mention. A copy of that Note is at AB, vol 1, tab 34. On 26 October 2016 the applicants served a five page note entitled “Respondents Note” dated 25 October 2016. A copy of the applicants’ note is at AB, vol 1, tab 29.

57. On 4 November 2016 the matter was before Judge Cogswell at which time his Honour listed it for 11 November 2016 to determine outstanding issues. His Honour indicated to the applicants that on that occasion they could provide an oral response (in addition to their written note already served) to the Attorney General's note of 10 October 2016.

58. On Friday, 11 November 2016 the matter was before Judge Cogswell. Counsel for the Attorney General relied upon the contentions set out in the note dated 10 October 2016. Each applicant made oral submissions to his Honour.

59. Judge Cogswell then delivered an ex tempore judgment which addressed three main matters.

1. His Honour indicated that the temporary stay pending payment by the DPP of the applicants' legal costs did not apply in respect of any criminal proceedings against either applicant which had not yet been prosecuted to trial.

2. His Honour confirmed that the temporary stay related only to the payment of the applicants' reasonable costs incurred in the District Court trial and did not extend to the costs incurred by the applicants in the Court of Criminal Appeal and the High Court.

3. His Honour confirmed that the order he made prohibiting the Crown from calling Brendan Pak to give evidence did not apply in respect of any separate trial of Jason Lee.

60. At a final mention on 23 November 2016, his Honour provided a sealed note of the final form of the Orders made, as follows:

"a)    In each case I refuse the applicants' applications for a permanent stay of proceedings.

b)   In each case I order that any further hearing in the criminal proceedings against both applicants in relation to the charges in the indictment which was the subject of the first criminal trial in the District Court be stayed until such time as the DPP pays the reasonable costs of both applicants in relation to that first trial. This stay applies except insofar as any appeal or cross-appeal from these orders.

c)   I refuse all of the relief sought in the applicants' respective second amended notices of motion, except in each case para 9 and in that regard I make an order that Brendan Pak be prohibited from giving evidence in the prosecution of the applicant Seong Lee. "

61. The Attorney General advised this Court that without any involvement by Judge Cogswell, on 25 November 2016 the District Court listed the separate trials involving Jason Lee arising out of the vehicle stop in February 2009 and the execution of the search warrant in December 2009. The trials are to be back-to-back with the vehicle stop charges listed for 21 August 2017 and the proceeds of crime charge listed for 4 September 2017, each with a 10 day estimate. The District Court has not listed for hearing the joint trials of Jason Lee and Seong Lee (comprising the outstanding charges that were the subject of the first District Court trial). The Attorney General understood that the District Court will not do so until judgment is handed down by this Court in relation to this application.

62. An examination of the transcripts and the submissions made by the parties between 29 August and 23 November 2016 shows nothing untoward occurring. The applicants were given an opportunity to make submissions and did so, both in writing and orally. There was no unfairness to the applicants in either the process followed or the conclusions arrived at by his Honour.

63. This ground of appeal has not been made out.

Ground 4 – Involvement by the NSW Crime Commission

64. The applicants’ submissions under this ground appear to have nothing to do with the decision of Cogswell DCJ. They are directed to what is characterised as unfair behaviour on the part of the Commission leading to a settlement of the CARA proceedings between it and the applicants which disadvantaged the applicants. The applicants submit that the conduct of the Commission amounted to duress and that in all the circumstances, the settlement was unfair. There is also a submission (by way of bare assertion and not supported by evidence) that the transcripts of the compulsory examinations before the Commission have been tampered with to the disadvantage of the applicants.

Consideration

65. The Attorney General and the DPP were not involved in the CARA proceedings. A complaint about the settlement of those proceedings is not relevant to whether Judge Cogswell erred in refusing to grant a permanent stay of the criminal proceedings brought against the applicants.

66. To the extent that the submissions concerning the transcripts of the compulsory examinations being tampered with are relied upon by the applicants, the Court has not been directed to any evidence to substantiate that allegation. Such a suggestion was not made at any time in the proceedings before Judge Cogswell when the applicants were legally represented. No questions were asked of the Commission witnesses to that effect.

67. This ground of appeal is irrelevant and in any event, has not been made out.

Ground 5 – Bias

68. The applicants submit that Judge Cogswell should have recused himself from hearing the applicants’ motions on the basis that “his family members were involved at the NSW Crime Commission”. In their submissions, the applicants go no further than that bare assertion, however, I assume that the applicants wish to incorporate as a basis for that submission the evidence and argument which was before his Honour on this issue and in relation to which his Honour gave judgment refusing the applications on 26 October and 2 November 2015.

Consideration

69. The background to those judgments is as follows. The matter commenced before Judge Cogswell on 19 October 2015 and a large amount of material was that day provided to his Honour for reading.

70. On the second day (21 October 2015) his Honour noted on the transcript, by way of disclosure, that when he held the office of Crown Advocate he had acted for Mr Phillip Bradley in his capacity as the NSW Crime Commissioner and had seen him in conference. His Honour said that when he was Crown Advocate the agencies to whom he had given legal advice included the Commission, the DPP and the Attorney General. His Honour said that he believed he had also seen Mr O'Connor in conference at least once.

71. Like Mr Bradley, Mr Timothy O'Connor, a senior officer of the Commission, provided an affidavit for the Attorney General in the motions to be heard by Judge Cogswell. His Honour indicated that his recollection was that the legal advice he provided to the Commission was in connection with undertakings and indemnities (rather than legal issues in relation to disseminations or other such matters of the type raised in the motions seeking permanent stays and related orders).

69. Judge Cogswell disclosed that Ms Alison Morgan, the solicitor for the Commission who was present in the courtroom, was a former Associate to his Honour. His Honour indicated that he held the statutory office of Crown Advocate from about October 2000 until he was appointed to the District Court in February 2007. Ms Morgan had been his Associate at the District Court from 2007 to early 2009. His Honour also disclosed that for part of the time from early 2000 until late in that decade his children had worked for the Commission as monitors.

70. As a result of those disclosures, each applicant indicated on 21 October 2015 that he was making an application for Judge Cogswell to disqualify himself on the ground of apprehended bias. The applications were heard on 26 October 2015 (in respect of Seong Lee) and 2 November 2015 (in respect of Jason Lee).

71. A note provided by Judge Cogswell to the parties concerning his former Associate was in the following form:

"Ms Morgan was his Honour's associate from mid 2007 until early 2009. She is and remains a personal friend of his Honour and his wife, as do all of his Honour's associates. His social contact is about half a dozen times a year and they exchange occasional emails and texts.

Ms Morgan, when she was his Honour's associate, encouraged his Honour's children when they were at university to apply to the NSW Crime Commission for jobs as monitors (as she herself had done as a student). She may have recommended them to the Crime Commission. They both worked as monitors for the Crime Commission some years ago but no longer do."

75. Before the applications were made, an email was placed before the parties dated 26 October 2015 from Ms Tracey Howe of the Crown Solicitor's Office. This email notified the applicants’ legal representatives of the result of searches and inquiries made of the Commission regarding the nature of his Honour's previous involvement, when Crown Advocate, in providing legal advice to the Commission. That email was received in evidence on the disqualification application. The email of 26 October 2015 was as follows:

"Dear Mr Gibson,

I refer to the disqualification application raised by Seong Lee.

By email to his Honour's Associate on Friday, 23 October 2015 at 11:27am I advised as follows:

'I am advised by Ms Alison Morgan that searches of the Commission's holdings have been conducted using the terms 'Richard Cogswell' and 'Crown Advocate' and as a result a number of files have been reviewed. I am advised that no advice from his Honour, as Crown Advocate, concerning coercive hearings or disseminations has been located.

I am further advised by Ms Morgan that the review indicates that his Honour's recollection is correct, the matters that he provided advice about, or was involved in with the Commission, concerned indemnities and undertakings.’”

76. By email of Friday afternoon (2:41pm) to the respondents' counsel, Mr Strickland SC raised the following questions:

“1.    I assume the advices referred to are written advices?

2.   Can Ms Morgan or anyone else advise whether searches of the Commission's holdings have revealed that His Honour's written advice only concerned indemnities and undertakings?

3.   Do the searches reveal whether any of the written advices including those concerning indemnities and undertakings concern the probity or propriety of the conduct of the NSWCC or its senior officers?”

77. The following response was given by Ms Tracey Howe:

“In respect of those questions I am informed by Ms Morgan and advise as follows:

1.   No written advices, or written records of any such advices (i.e. from Cogswell CA concerning coercive hearings or disseminations) have been located by the Crime Commission.

2.   The matters his Honour, as Crown Advocate, had any involvement in concerned the policy and protocols regarding indemnities and undertakings, applications by the Commission under the Listening Devices Act 1984 and one subpoena matter.

3.   No advice about, or involvement in, matters concerning the probity or propriety of the conduct of the Commission or its senior officers by his Honour, as Crown Advocate, was located.”

78. Both counsel for the applicants provided written submissions in advance of the oral argument. Those written submissions related to the legal principles applicable to a claim of apprehended bias.

79. On 26 October 2015 Judge Cogswell heard oral submissions on the disqualification application made by Seong Lee. The application was based on his Honour’s previous involvement when Crown Advocate in advising the Commission and on a family association. Following the receipt of the oral submissions, his Honour adjourned for a short time and then delivered an ex tempore judgment refusing Seong Lee’s disqualification application.

80. Having referred to relevant authority (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7] – [8]; Johnson v Johnson [2000] HCA 48; 201 CLR 488) his Honour said:

"28    ... My professional association with both Mr Bradley and Mr O'Connor was passing and concerned advice unrelated to the issue which arises in these proceedings. In my former capacity as the State's Crown Advocate, I gave advice and appeared for many New South Wales Government clients, statutory and otherwise. My involvement with the Crime Commission, and particularly these two officers, was far less extensive than my involvement with some other public officers.

29   Secondly, the High Court has already accepted a concession that two of the disseminations were unlawful. True it is that I may be asked to determine whether up to another 37 disseminations were or were not unlawful. But as Ms Abraham says, that will be a matter for me hearing relevant evidence and then making a determination based upon that evidence and any relevant legal principles or statutes.

30   The supporting relevant family connection is now some years in the past and would not, in my opinion, cause the relevant concern to a lay observer.

31   There is no issue about the correctness of any advice which I previously gave to the Crime Commission or its officers and certainly I am not in the position where I may be asked to make findings about the credibility or about serious and contumacious ethical breaches alleged against any former colleague.

32   I accept ... that the test is not satisfied in this case and that no reasonable bystander would come to the conclusion which Mr Strickland says that he or she would come to and which would form a proper basis for me to disqualify myself for apprehended bias.”

81. On 2 November 2015 oral submissions in support of a disqualification application were made on behalf of Jason Lee. Following submissions, Judge Cogswell delivered an ex tempore judgment refusing Jason Lee’s disqualification application.

82. In respect of further oral submissions made about his Honour’s children having previously worked at the Commission, his Honour said:

“6   I do not propose to disqualify myself for the additional reasons that Ms Bashir puts forward. Although we cannot determine the exact time that my children were working at the New South Wales Crime Commission, it was some years ago. Apart from Mr Bradley and Mr O'Connor I do not recognise any of the names of witnesses who will be cross-examined and who are from the Crime Commission. In addition, I take into account the concession already made that certain conduct, at least, engaged in on behalf of the Crime Commission was unlawful.

7   Given that it is some years since my children were employed by the Commission and that I do not recognise any of the names, apart from the two that I have referred to, and in the context of the concession that certain conduct was unlawful, l am of the view that a fair minded lay observer might not reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide. This is because there is no ongoing connection or obligation either on the part of the New South Wales Crime Commission or my children and that with the two exceptions, who are current or former Crime Commission staff whom I have met only a handful of times professionally, there is no perceived reasonable reason for the lay observer to hold a concern which the test requires." (Judgment AB, vol 1, tab 9)

83. In considering this question, the statements of principle in Re Polites; Ex Parte the Hoyts Corporation Pty Ltd [1991] HCA 25; 173 CLR 78 at 87 – 88 are on point. There, the plurality (Brennan, Gaudron and McHugh JJ) said:

“A prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a tribunal (or of a court, for that matter), from sitting in proceedings before that tribunal (or court) to which the former client is a party. Of course, if the correctness or appropriateness of advice given to the client is a live issue for determination by the tribunal (or court), the erstwhile legal adviser should not sit. A fortiori, if the advice has gone beyond an exposition of the law and advises the adoption of a course of conduct to advance the client's interests, the erstwhile legal adviser should not sit in a proceeding in which it is necessary to decide whether the course of conduct taken by the client was legally effective or was wise, reasonable or appropriate. If the erstwhile legal adviser were to sit in a proceeding in which the quality of his or her advice is in issue, there would be reasonable grounds for apprehending that he or she might not bring an impartial and unprejudiced mind to the resolution of the issue. Much depends on the nature of his or her relationship with the client, the ambit of the advice given and the issues falling for determination.”

84. In Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 observations of a similar kind were made. There, the plurality (McHugh, Kirby and Callinan JJ) said at [33]:

“Relevantly to the present matter, a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. In Re Polites; Ex parte Hoyts Corporation Pty Ltd, this Court held that even a prior relationship between a legal adviser and client does not generally disqualify the legal adviser, on becoming a member of a court or tribunal, from sitting in proceedings in which the client is a party. In the normal case (of which this is an illustration), it is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise.”

85. Having regard to those principles, and the evidence of the various connections which Judge Cogswell had with the Commission, I have not been persuaded that his Honour misapplied any legal principles when considering the applications to disqualify himself. For the reasons which his Honour gave, he rightly rejected the application.

86. Ground 5 of the applicants’ grounds of appeal has not been made out.

Conclusion

87. No successful challenge to the judgment of Cogswell SC DCJ of 29 August 2016 has been made out. This is not surprising given the evidence apparently available to the Crown to establish the counts alleged against both applicants and the very high standard which the applicants had to satisfy in order to obtain a permanent stay. A consideration which is sometimes forgotten is that which Mason CJ set out in Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at [33]:

“33   The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial.”

88. In Williams v Spautz [1992] HCA 34; 174 CLR 509 the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said at 529:

“… It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is "a heavy one" … and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.” [Footnotes omitted]

89. It follows that the order which I propose is that leave to appeal against the judgment of Cogswell SC DCJ of 29 August 2016 refusing to grant a permanent stay in favour of the applicants should be granted but that the appeal be dismissed.

90. This then leaves for consideration the cross-appeals by the Attorney General.

Cross–appeals by the Attorney General

91. The Attorney-General has cross-appealed against the following two interlocutory orders which the primary judge made:

1. The order that “Brendan Pak be prohibited from giving evidence in the prosecution of the applicant Seong Lee”; and

2. The order imposing a temporary stay of criminal proceedings pending the DPP paying the applicant’s reasonable legal costs. The order is in the following terms: “Any further hearing in the criminal proceedings against both applicants in relation to the charges in the indictment which was the subject of the first criminal trial in the District Court be stayed until such time as the DPP pays the reasonable costs of both applicants in relation to that first trial. The stay applies except insofar as any appeal or cross-appeal from these orders.”

Order precluding Brendan Pak from giving evidence

92. By notice of cross-appeal filed 30 December 2016 the Attorney General submitted that Judge Cogswell erred in ordering that Brendan Pak be prohibited from giving evidence in the prosecution case against Seong Lee. Pursuant to s 5F(2) of the Criminal Appeal Act the appeal by the Attorney General is as of right. The Attorney General submitted that it was not open to his Honour to conclude that the calling of Brendan Pak in the prosecution against Seong Lee would give rise to a real potential for and lead to unfair consequences for Seong Lee.

93. The Attorney General submitted that the primary judge’s finding in respect of Brendan Pak proceeded by way of three connected steps so that if there were an error in any one step, that would be sufficient to undermine his Honour’s conclusion and make it appropriate for the orders to be set aside. The Attorney General submitted that there is an error in each of the three steps.

94. The Attorney General submitted that the first step in Judge Cogswell’s reasoning was that Mr Pak changed his position over several pre-trial interviews/examination by the Commission. At [113] the primary judge said:

“His [ie Pak 's] early position was fairly neutral regarding the 'young boy' Seong Lee to whom he gave pocket money to assist in dealing with soap powder imported by Mr Pak. Then, it is argued, Mr Pak changed his position to Seong Lee selecting certain of the washing powder boxes marked with a texta. That was more incriminating of Seong Lee.”

The Attorney General submitted that the primary judge accepted that contention by the applicant.

95. The Attorney General submitted that when one looks at the timing of events, there was no basis for his Honour accepting that contention. The Attorney General noted that Brendan Pak was examined by the Commission on 9 December 2009, i.e. before Seong Lee was first examined by the Commission on 16 December 2009. At his examination on 9 December 2009, Mr Pak gave evidence to the Commission that, amongst other things, on some occasions Mr Pak selected the boxes of washing powder that Seong Lee took away and that on other occasions Seong Lee just took boxes. The Attorney General relied upon the following evidence:

“Q. Now you said you gave him those boxes. You told me earlier today that on some occasions you selected the boxes that you gave to him, is that correct?

A. Yes.

Q. And on other occasions he just took boxes?

A. Yes.

Q. Are you able to estimate how many the boxes he took of his own choice as compared with the ones you gave to him?

A. Oh, some time he saying that over ten boxes so I just picked it up and I gave to him and he pick up, so, you know, that is ten boxes there and I put in the car and I helped him to put ten boxes in the car and then off he goes.

Q. Were the boxes that Seong took, were they, could you tell whether they were marked any differently as to the other boxes that were with you?

A. No, I don't know.

Q. Are you saying you couldn't tell?

A. No." (Transcript of compulsory examination of Brendan Pak, p 6–7, (AB vol 10, tab 72))

96. On the basis of that evidence, the Attorney General submitted that before Seong Lee had been compulsorily examined, the Commission knew from Mr Pak's evidence that Seong Lee assisted him in unloading boxes of washing powder which had been imported and that Seong Lee took away with him some boxes that he seemingly selected to take away. The Attorney General also noted that in his compulsory examination on 16 December 2009, Seong Lee did not give evidence to the effect that he selected certain washing powder boxes marked with a texta.

97. It followed, so the Attorney General argued, that there was no cogent basis arising from the relevant compulsory examination of Brendan Pak and the compulsory examination of Seong Lee which could support a contention that evidence given by Seong Lee at his compulsory examination was, in some manner, used to forewarn and shape the evidence of Mr Pak.

98. The Attorney General submitted that the second step in the reasoning of the primary judge on this issue depended upon an acceptance by him of the following proposition put forward on behalf of the applicants:

"The applicants argue the likelihood of Mr Pak changing his position after being confronted by the interviewers with Seong Lee's examination that tended to point to a greater involvement by Mr Pak. Hence, Mr Pak incriminated Seong Lee to protect himself. The applicants acknowledge there is no direct evidence of police exposing Seong Lee's interview contents to Mr Pak but they invite me to infer it as a likelihood." (August Judgment at [113])

99. The Attorney General submitted that the primary judge must be taken to have accepted the applicant's contention in this respect. The Attorney General submitted that it was not open to his Honour to do so on the evidence. There was no evidence that police exposed Seong Lee's interview contents to Mr Pak and there was no evidence that Mr Pak was given any access to the evidence from either of the applicants’ compulsory examinations. No police or Commission officer agreed that he had told Mr Pak anything that Seong Lee said in his compulsory examination. There was no evidence that police or the Commission shaped and forewarned the evidence of Mr Pak.

100. In its submissions the Attorney General reviewed the available evidence on this issue as follows.

101. Detective Hughes, the Joint Officer in Charge (OIC), gave evidence that he did not appreciate (in 2010) that compulsory transcripts were secret, but firmly denied that he told Brendan Pak that Seong Lee had given evidence at his compulsory hearing that Mr Pak had selected the boxes. Detective Hughes said: "I didn't say that to Mr Pak. I didn't discuss [Seong Lee's] transcript with Mr Pak.” (Transcript 27 April 2016, p 295 (AB vol 3, tab 52, p 1037))

102. Detective Plummer (the other OIC) gave evidence that he did not discuss with Brendan Pak the evidence he was about to give to the Commission. Detective Plummer said "I wasn't going to interfere with that Crime Commission process. I never have. Never will”. (Transcript 28 April 2016, p 319, (AB vol 3, tab 53, p 1061))

103. Neil Tuckerman of the Commission gave evidence that he did not recall anyone suggesting to Brendan Pak the contents of any evidence given by Seong Lee. (Transcript 28 April 2016, p 374 (AB vol 3, tab 53, p 1116))

99. As to whether someone might have told Brendan Pak what Seong Lee said when he was compulsorily examined, Jessica Parker gave evidence that it was possible. However, that answer was qualified. Ms Parker said "I believe it's possible, yes, but I can't say". Ms Parker also resisted the suggestion (by counsel for Seong Lee) that it was "likely" to have happened. (Transcript 22 April 2016, p 206 (AB vol 3, tab 51, p 948))

100. The Attorney General submitted that there was, in effect, no evidence that police or the Crime Commission shaped and forewarned the evidence of Mr Pak. It submitted that the evidence was to the contrary. The Attorney General submitted that the onus was on the applicants to demonstrate their entitlement to an order and that they had not discharged that onus. The Attorney General submitted that mere assertion without evidence was insufficient.

101. By way of further support for its submission, the Attorney General noted that defence counsel at the first trial (who had the transcripts of the compulsory examinations) did not suggest to Mr Pak during cross-examination that police had used Seong Lee's evidence to the Commission to influence him to change his evidence, or had told Mr Pak anything that Seong Lee said to the Commission (AB vol 12, tab 81 and vol 13, tab 82).

102. The Attorney General submitted that the third step in the primary judge’s reasoning process was to accept the applicants' submission that they would be limited or hindered in cross-examining certain witnesses at trial because the cross-examiner, in exploring Mr Pak's argued change of position, would be at risk of "revealing the content of Seong Lee's compulsory examination". Thus, his Honour said:

"It is a potentially powerful line of cross-examination to suggest to Mr Pak that he incriminated Seong Lee in order to reduce the risk of being charged himself with a very serious crime. To explore that important issue with Mr Pak and other witnesses there is in this case, in my opinion, more than a risk or a possibility that Seong Lee's examination contents would have to be exposed.” (August Judgment [116])

108. The applicants argued and his Honour accepted that this would alter the accusatorial process inherent in a criminal trial in a fundamental sense (citing Bathurst CJ in R v Sellers; R v McCarthy [2015] NSWCCA 76; 89 NSWLR 155 at [123]).

109. The Attorney General submitted that his Honour’s approach and the approach of the applicants to that issue was in error. The Attorney General submitted that it was difficult to see how a cross-examiner appearing for Seong Lee, in exploring with Brendan Pak the suggested change in his position (to the effect that, across a series of examinations, he moved to a position that more keenly incriminated Seong Lee), would be at risk of exposing the contents of Seong Lee's compulsory examination. To the extent that positive propositions would be put to Brendan Pak in cross-examination, and assuming they related to any dealings between him and Seong Lee, then presumably the propositions would be put, and only put, on the basis of the instructions given by Seong Lee to his counsel. To that extent, the cross-examiner might be at risk of exposing, impliedly, his instructions from Seong Lee but this would not be taken as involving or necessarily involving, the revelation of any of the contents of Seong Lee’s compulsory examination.

110. The Attorney General noted that when dealing with the applicants’ contentions in respect of Brendan Pak, Judge Cogswell referred ([112] and [115] of his judgment) to the decision of the Court of Criminal Appeal in R v Sellers; R v McCarthy and the order upheld in that case in respect of Mr Tang, the accountant. The Attorney General submitted that the facts of R v Sellers; R v McCarthy were quite different from those relating to Mr Pak.

111. The Attorney General sought to distinguish R v Sellers; R v McCarthy from the position of Brendan Pak and the applicants as follows.

112. In R v Sellers; R v McCarthy the proposed witness Mr Tang had been present during the compulsory examinations and conceded that the compulsorily acquired material and the defendants’ evidence at the compulsory examinations may have assisted him in understanding the defendants’ involvement in the relevant taxation schemes, being the subject on which it was proposed that he give evidence.

113. Mr Tang could not give direct evidence about the defendants’ involvement in relevant matters. His evidence was substantially based upon the review of the documentary material including the transcript of the defendants’ compulsory examinations (which he also observed). By way of contrast, in the present case Mr Pak would give direct evidence about his interactions with the two applicants that was relevant to their role in the supply of pseudoephedrine. He was a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. He is a key Crown witness of fact.

114. Further, in contrast to the facts in R v Sellers; R v McCarthy, there is no evidence that Mr Pak was given access to the evidence from the applicants’ compulsory examination. The Attorney General submitted that the onus was on the applicants to demonstrate their entitlement to an order. Speculation was insufficient to provide a basis for the orders sought and to prevent a witness from giving evidence which was otherwise admissible.

115. The Attorney General submitted that on a proper review of the evidence, it was not open to the primary judge to order that Brendan Pak be prohibited from giving evidence in the prosecution of Seong Lee. On the evidence there was no proper basis for the making of such an order.

116. No submissions were made, either in writing or orally, by the applicants in relation to that issue. Accordingly, it has been necessary to approach the matter on the basis of the reasoning behind the primary judge’s decision and the challenges made to that decision by the Attorney General.

117. On my review of the evidence, I agree with the submissions of the Attorney General. It was not open to the primary judge to make the findings which he did. His Honour appears to have accepted somewhat uncritically, the submissions put by the applicants which on closer examination of the evidence were not made out. Moreover, the position of Brendan Pak is very different to that of Mr Tang in R v Sellers; R v McCarthy.

118. The conclusion which I have reached is that the cross-appeal against the order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Lee should be upheld and the order should be set aside.

Temporary stay pending payment of legal costs

119. The Attorney General submitted that the primary judge erred in imposing a stay of the criminal proceedings against Jason Lee and Seong Lee, which were the subject of the retrial order by the High Court. The temporary stay was sought by the applicants, based on conduct by “the prosecution authorities” in connection with the provision to the DPP of the compulsory hearing transcripts of the applicants. The quantum of costs claimed by the applicants, in respect of the first District Court trial was in the order of $412,500 (affidavit of Edward Chee, 15 July 2015 at [108], (AB vol 9, tab 59)). Those costs were calculated at “set rates”. At commercial rates the amount was in the order of $544,990. His Honour did not accept that “reasonable costs” would be costs calculated at commercial rates.

120. There is no longer an issue that the Court has power in an appropriate case to order a stay of criminal proceedings until the prosecutor pays the legal costs of the accused. In R v Curtis [2014] NSWSC 1582 at [24] – [27] Davies J summarised the applicable principles:

“[24]   Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made: Latoudis v Casey [1990] HCA 59;170 CLR 534 at 557; R v Mosely (1992) 28 NSWLR 735 at 738. Section 17 of the Criminal Appeal Act 1912 (NSW) may be taken to reflect the general rule: R v Mosely at 739.

[25]   Nevertheless, there are procedural ways around the problem. An adjournment might be granted if a party agrees to pay the costs or undertakes to do so with the result that any remedy would be in contract: R v Mosely at 738. A similar way of achieving the same result is for the criminal proceedings to be stayed until a costs order is paid. It would be appropriate to do this where there is fundamental unfairness in permitting the Crown to proceed to trial where the costs have been incurred by the Crown's fault of a relatively serious kind: Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at 2 and [46]-[47].

[26]   It is necessary, however, to point to some fault on the part of the prosecution. Unfairness cannot be established without proof of fault: Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302 at [25]; R v Selim [2007] NSWSC 154. The power to stay proceedings in circumstances such as for the payment of costs is only to be exercised in the most exceptional of circumstances: Petroulias at [17].

[27]    It seems to me, therefore, that if some delinquency, unconscionability or unfairness on the Crown's part can be demonstrated the Court in the control over its own processes would have the power to stay the trial until such time as the costs are paid.”

121. In Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [7] Santow JA (with whom Smart AJ agreed) said:

"7   … The power of granting a stay against the Crown until wasted costs are paid is to be used only for the rare and extreme case of gross unfairness on the part of the Crown. That is to say, unfairness which, exceptionally, can override the public interest in pursuing a criminal prosecution, though to be weighed against what is the urgency of bringing the case to trial.”

122. By way of background, the proceedings in the Court of Criminal Appeal in 2012 and 2013 and in the High Court, proceeded on the basis that, but for the prosecution having received (wrongfully from the Commission) the transcript of the compulsory examinations of the applicants, the prosecutor would not have been in possession of such information, which might throw light on possible defences each applicant might raise. This is consistent with the High Court finding that, by reason of the provision of the transcripts to the prosecutor, the applicants' “trial was one where the balance of power shifted to the prosecution” (Lee v The Queen at [46]) and that “what occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution viz-a-viz the accused (Lee at [51]).

123. The Attorney General submitted that unknown to the High Court and the Court of Criminal Appeal in 2012 and 2013, the applicants (by their solicitor, Mr Miralis) had voluntarily made disclosures to the DPP (to the solicitor with conduct of the criminal proceedings) about the fact of, and some of the content of the compulsory examination of Seong Lee by the Commission. Before this disclosure by the applicants, the DPP had been unaware that any examinations had taken place (and did not have any transcripts). Their solicitor, Mr Miralis, also indicated investigative steps that should be taken (by the prosecution/police) arising from Seong Lee’s compulsory hearing. It was the conduct of Mr Miralis, on behalf of Jason Lee and Seong Lee which prompted the ODPP solicitor to request and obtain copies of the compulsory hearing transcripts. Further, in the context of considering the permanent stay applications, Judge Cogswell made findings favourable to the Attorney General in connection with the disclosures and the conduct of the DPP solicitor who requested the transcript from the Commission.

124. The Attorney General observed that whether the High Court, had it been aware of the further evidence which emerged in the proceedings before Judge Cogswell and the associated findings that his Honour made, would necessarily have made the comments and findings in the precise terms that it did in the 2014 judgment, is moot.

125. The Attorney General noted that in the context of considering the application for a permanent stay, the primary judge said:

“However, the High Court remarks have to be viewed in the context of what was not before that Court, namely, disclosures by the applicants' solicitors of the fact that Seong Lee had been examined by the New South Wales Crime Commission and certain information from that examination. The solicitor also suggested that the information should be investigated further." (August Judgment at [123])

126. The Attorney General submitted that properly considered, the fact of such disclosures, the associated evidence and his Honour’s findings were relevant, not only to the application for a permanent stay but also to the question of whether Judge Cogswell ought to have imposed a temporary stay of the joint criminal trial of the applicants pending payment by the DPP of the applicant’s reasonable legal costs from the first trial.

127. In the course of its submissions on this issue, the Attorney General reviewed the voluntary disclosures by the applicants to the DPP of aspects of their intended defence in the criminal proceedings. A summary of that review is as follows.

128. On 22 February 2010 Mr Miralis, the solicitor for Jason Lee, wrote to Ms Victoria Garrity, the then ODPP solicitor with carriage of the matter, advising that Jason Lee had a lawful source for the funds seized in the vehicle stop in February 2009, and that he would be relying on oral and documentary evidence demonstrating this, as well as evidence of his significant business interests in Australia over an extended period. Mr Miralis further advised that Jason Lee would be relying on evidence of his family's wealth and of them forwarding money to Australia for the purpose of investing in the J & Lee Property Investment Group. Mr Miralis advised that Jason Lee's wife and his daughter would give corroborating evidence of his business interests in Australia, the forwarding of funds to him from overseas over an extended period from his wife's father, and of J & Lee Property Investment Group's business interests. Mr Miralis indicated that such evidence would be directly relevant to the issue of the lawful source of the money and casino chips. Mr Miralis asked that criminal justice certificates be arranged for Jason Lee's wife and daughter.

129. On 4 March 2010 Mr Miralis, on behalf of Jason Lee, made a No Bill application to the ODPP in connection with the proceeds of crime charges arising from the 25 February 2009 vehicle stop. The No Bill application included details of an explanation by Jason Lee for the possession of the $95,000 cash and casino chips, and included a report from an accountant regarding Jason Lee's involvement with J & Lee Property Investment Group Pty Ltd, as well as a copy of the passport of his sister Hu Lee.

130. On 18 May 2010 Mr Miralis wrote again to Ms Garrity of the ODPP, this time following Jason Lee having been charged with a large commercial supply of pseudoephedrine (after further testing of washing powder located in the Waterloo premises). Mr Miralis advised that Jason Lee's wife and daughter would provide evidence of an exculpatory nature as to how the washing powder came to be in the premises, as well as the lawful provenance of Jason Lee's money, including through their own knowledge and participation in the transfer of funds from South Korea to Australia.

131. Mr Miralis said that the evidence from Jason Lee's wife and daughter would be equally relevant to Seong Lee, who had been charged with similar offences. Mr Miralis renewed his application that criminal justice visas be arranged for Jason Lee's wife and daughter.

132. On 24 May 2010 Mr Miralis wrote again to Ms Garrity, on behalf of Jason Lee and Seong Lee.

133. Mr Miralis advised Ms Garrity that:

1. Seong Lee had given evidence to the NSW Crime Commission;

2. Seong Lee was asked extensive questions under oath about the provenance of the washing powder that was located in the Waterloo premises and his dealing with the washing powder over a period of time;

3. In his evidence before the Commission, Seong Lee referred repeatedly to the washing powder being used for washing purposes, and to the fact he had supplied the powder to his mother on numerous occasions in the belief that it was washing powder;

4. That Seong Lee’s belief was that the washing powder was a washing product and not that it contained a prohibited drug;

5. That Jason Lee’s wife had given similar evidence on oath to the Commission;

6. That Jason Lee’s wife and daughter could provide evidence as to how the washing powder came to be in the unit at Waterloo that would corroborate what Seong Lee had already disclosed to the Commission under oath.

134. In this letter Mr Miralis further advised that Mr Graham Turnbull SC had asked Mr Miralis to convey to the ODPP his “extreme concern” that, given the above, Jason Lee’s wife and daughter had not been interviewed by police.

135. Mr Miralis advised that Jason Lee’s case, as evident from related Supreme Court CARA proceedings, was that he was not residing at and had no control over the Waterloo premises and that his wife and daughter could provide corroborative evidence on this aspect. Mr Miralis repeated his request that criminal justice visas be arranged for Jason Lee’s wife and daughter.

136. The effect of those communications can be easily summarised. Mr Miralis’ letter disclosed to the ODPP that Seong Lee had given evidence to the Commission and details of parts of that evidence. Mr Miralis went further and suggested that investigative steps be taken in respect of the material arising from Seong Lee’s compulsory examination.

137. The Attorney General noted that for reasons that were not readily apparent, Mr Miralis’ letter of 24 May 2010 to Ms Garrity was not part of the evidence before the NSW Court of Criminal Appeal or the High Court. This is despite the fact that the sending of that letter by Mr Miralis preceded and clearly prompted Ms Garrity’s email to Brendan Plummer of 1 July 2010 (which was the subject of consideration by the High Court and the Court of Criminal Appeal) requesting copies of Commission transcripts of evidence given by Seong Lee and if he gave evidence, Jason Lee. Ms Garrity was unaware of the Commission having undertaken such compulsory examination of the applicants until the communication from Mr Miralis.

138. Ms Garrity gave evidence before Judge Cogswell that after receiving the letter of 24 May 2010 from Mr Miralis, she sent the email of 1 July 2010 requesting copies of the Commission transcripts because:

“I wanted to know what the full version was that had been referred to by Mr

Miralis in his letter to me.” (T.22 April 2016, 220.41-42)

Ms Garrity further said:

“It was more that something had been put to me that was an explanation consistent with innocence. Now, as a prosecutor, if there was such an explanation, yes, I would want to know what that explanation was.” (Judgment at [33]; Transcript 22 April 2016, 219.28, (AB vol 3, tab 51))

139. The Attorney General submitted that Cogswell DCJ made a number of key findings that are relevant to this ground when dealing with the application for a permanent stay. The complaint made by the Attorney General is that when dealing with this ground of appeal, his Honour failed to apply those key findings. The Attorney General submitted that to the extent that this ground involves a challenge to a discretionary judgment, to which the principles in House v The King [1936] HCA 40; 55 CLR 499 apply, his Honour’s judgment was liable to be set aside in that his Honour failed to take into consideration material matters, i.e. the key findings which he had already made.

140. The key findings relied upon by the Attorney General are:

1. “Ms Garrity's conduct in seeking the [compulsory examination] transcripts was understandable", and "I accept that it was 'not done with any improper motive' and I make no criticism of Ms Garrity in these proceedings." (August Judgment at [33]).

1. The “errors made on the part of the prosecuting authorities [in connection with the provision of transcript by the Commission to the DPP/prosecutor]” have "to be seen in context. The error was connected to a prevailing view held at the time". (August Judgment at [64])

2. "Some years ago, and at the relevant time for this case, it was not viewed as oppressive for the applicants' transcripts to be provided to the DPP. That view came to prevail for a short time in the Court of Appeal and was obviously shared by the DPP and the New South Wales Crime Commissioner. In other words, it was shared at a high level." (August Judgment at [72])

And:

4. "... the behaviour was not regarded as culpable or unfair at the time.”

5. The view of the NSW Crime Commissioner, Phillip Bradley, in 2010 that the DPP was entitled to have the transcript was an available and respectable view that was supported by the Court of Appeal's judgment in SD v New South Wales Crime Commission [2013] NSWCA 48; 84 NSWLR 456 at [29], [32], [34]. (August Judgment at [69] and [70])

6. “... there was an available and respectable point of view that the purposes of the New South Wales Crime Commission Act supported a disclosure to the DPP and that such a disclosure would not prejudice a person's fair trial. That point of view was authoritatively confirmed in SD, but a few months later authoritatively rejected by the High Court of Australia in X7 v Australian Crime Commission [2013] HCA 29, 248 CLR 92; There is no suggestion that Mr Bradley acted mala fides." (August Judgment at [70])

7. In acting as he did in 2010 Mr Bradley was acting in accordance with “the prevailing view”. (August Judgment at [71]).

8. The applicants’ solicitor, Mr Miralis regarded the disclosure of information to the DPP as appropriate and not prejudicing his clients. As Judge Cogswell said: "Clearly, the applicants' solicitor, Mr Miralis, also regarded the disclosure of information to the DPP as not prejudicing his clients' fair trial. He invited further investigation of the issues that were raised. Both Mr Bradley and Mr Miralis were acting appropriately in accordance with a prevailing view. The Miralis correspondence is an illustration of that prevailing view.” (Judgment at [71])

9. Mr Miralis's conduct in disclosing information to the DPP about the fact of and content of Seong Lee's examination "significantly diluted" any unfair consequence arising for Seong Lee's trial. As Judge Cogswell said: "Seong Lee's solicitor chose to disclose the questions and answers to the DPP solicitor relevant to his request for criminal justice visas. He disclosed not only the fact of the examination by the New South Wales Crime Commission but some of its content as well. This factor must significantly dilute the impact of the questions asked and answers given during the hearing' or any unfair consequences for Seong Lee's trial. Any unfair consequence was accepted on behalf of Seong Lee by his solicitor disclosing information to the ODPP in a legitimate pursuit of his client’s interests. The agency of disclosure of that information by the New South Wales Crime Commission leading to any unfair consequences was thereby diminished.” (August Judgment at [85])

141. The Attorney General submitted that his Honour should accept that consistent with the judgment of Ipp JA in Petroulias v The Queen (Latham and Fullerton JJ agreeing) relevant unfairness could not be established without proof of fault on the part of the prosecution. The Attorney General submitted that when this part of his Honour’s judgment is read as a whole, it is apparent that his Honour in effect failed to apply and have proper regard to the key findings which have just been set out. The Attorney General submitted that this amounted to House v The King error.

142. The Attorney General submitted that when considering this question his Honour failed to have regard to his finding that the provision of transcript from the Commission to the DPP was consistent with the prevailing view held at the time and that this finding was confirmed by the actions of Mr Miralis who clearly did not regard such disclosure as prejudicing his clients’ fair trial.

143. The Attorney General submitted that while the correctness of the High Court decision must be accepted, when considering the application for a temporary stay, Cogswell DCJ was required to determine whether there was relevant fault on the part of the prosecution and if so, its extent. The Attorney General submitted that by failing to have regard to the key findings which he had made in the context of the permanent stay application on this issue, his Honour failed to have regard to matters which would have had the effect of either removing or significantly diminishing the notion of there having been for the purposes of the temporary stay analysis, relevant fault on the part of the prosecution.

144. No submissions, either orally or in writing, were made by the applicants in relation to this issue. It is therefore necessary to consider the submissions which were made to his Honour by both sides and his Honour’s reasoning in order to assess whether the Attorney General’s criticism has been made out.

145. Before his Honour the applicants submitted that the observations by the High Court, which were critical of the prosecution, were sufficient to establish fault on its part thereby justifying the granting of a temporary stay until the applicant’s reasonable costs of the first trial were paid. The applicants submitted that it was not necessary for egregious or flagrant misconduct on the part of the prosecution to be established but fault on its part would be sufficient. They submitted that the findings of the High Court in Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455 would easily reach that threshold.

146. The Attorney General put the same arguments to his Honour as were raised before this Court. In particular that his Honour had much more information about how the transcripts came into the possession of the prosecution than did the High Court. In that regard, his Honour reiterated his finding that he had no hesitation in accepting Ms Garrity’s evidence about why she sought the transcripts, but noted that her role ceased at an early stage.

147. His Honour had particular regard to the High Court’s critical observations directed to the Crown Prosecutor at the trial. His Honour specifically relied on the following observations by the High Court in Lee v The Queen:

“16   The Crown Prosecutor believed that he was entitled to read the transcripts, although he conceded that he had thought it "unusual" that he had materials which seemed to disclose the defence case. But he did not take the matter further. He did not enquire whether the transcripts should have been provided to him.

…

44   … The prosecution should have enquired as to the circumstances in which the evidence came into its possession and alerted the trial judge to the situation, so that steps could be taken to ensure that the trial was not affected. The trial judge could have ordered a temporary stay, while another prosecutor and other DPP personnel, not privy to the evidence, were engaged.”

148. His Honour also relied on the concession made by the Attorney General that “It is not disputed that in the earlier proceedings the DPP used the material for an improper purpose”.

149. His Honour set out his conclusion as follows:

“141   To my mind these observations by the High Court reach the threshold for a temporary stay. The High Court makes it clear that “the consequence” of the NSW Crime Commission’s failure to quarantine the compulsorily acquired material was that “the applicants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide” (at [34]). The failure of the Crown Prosecutor to alert the trial judge meant that there was no temporary stay “while another Prosecutor and other DPP personnel not privy to the evidence were engaged” (at [44]).

142   In my opinion these circumstances were “most exceptional” and resulted in a gross unfairness to the accused. The Crown Prosecutor should not have been given the evidence. In the circumstances where he had the evidence, the trial should have stopped and a fresh trial started. The applicants had to finish that unfair trial and to prosecute their appeals before they were vindicated.

143   I will in due course order a temporary stay until the DPP pays the applicants’ reasonable costs of the trial …”

150. On my reading of the authorities, more than simple fault on the part of the prosecution is required before a court should make an order of the kind under consideration. On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious. It would be sufficient in my opinion if the fault were of a serious kind.

151. Otherwise it seems to me that two issues arise. Firstly, did his Honour’s exercise of discretion miscarry in a House v The King way and if that is made out, in the re-exercise of discretion by this Court is fault of the relevant kind made out so as to justify a temporary stay.

152. It cannot be said that his Honour disregarded his findings as to Ms Garrity. He specifically referred to those findings in relation to her. What his Honour does appear to have left out of his consideration is his finding that there was a respectable body of opinion at a high level (including the members of the Court of Criminal Appeal who considered the applicants’ appeal) to the effect that it was not oppressive for the Crime Commission transcripts to be provided to the prosecution. His Honour also appears to have disregarded that much of the damaging information in the Commission transcripts had already been communicated to the prosecution by Mr Miralis. These were important considerations because they affect how one treats the observations of the High Court which were critical of the prosecution.

153. For example, if the prevailing opinion at the time of trial was that the Commission transcripts were not oppressive, then there was no reason why the Crown Prosecutor would have taken the matter to the trial judge and even if he had brought it to the attention of the trial judge, the trial judge may well have followed the prevailing opinion and allowed the trial to continue with no change to the prosecutor and other DPP personnel.

154. Looked at in that way, the fault on the part of the prosecution was in holding a wrong opinion as to the law which was only corrected when the High Court delivered its decisions in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 and Lee v The Queen.

155. It follows that I am satisfied that his Honour’s exercise of discretion did miscarry by failing to take into account those two important matters. That means that this Court has to re-exercise the discretion on this issue. That poses fairly and squarely the question of whether fault of the kind which I have identified on the part of the prosecution, i.e. an incorrect understanding of the law, which led to the first trial miscarrying, is fault of the kind which justifies the granting of a temporary stay pending the payment of the applicants’ reasonable costs.

156. On my reading of the authorities, fault of this kind is not such as would provide a proper basis for his Honour granting a temporary stay.

157. There is another consideration. It is clear from the proceedings before his Honour that if a stay in the form granted by his Honour were allowed to remain in force, there would continue to be a significant dispute as to the quantum of those costs. Substantial delay would be likely to occur before that issue was resolved. That would occur in circumstances where there has already been excessive delay in the charges against the applicants being finalised.

158. Accordingly, if I am wrong in my conclusion as to fault, and it was appropriate for a temporary stay to be granted, I would do so on the basis not that the DPP pay the reasonable costs of the applicants but that such temporary stay operate until the DPP gave an undertaking to pay the reasonable costs of the first trial incurred by the applicants. This would have the advantage of enabling the joint trial to proceed and preventing arguments as to the quantum of the costs further delaying that proceeding.

159. I am satisfied that the second ground of the cross-appeal has been established by the Attorney General and that the order imposing the temporary stay pending the payment of costs should be set aside.

Conclusion

160. The orders which I propose are as follows:

1. The non-publication order of Judge Cogswell SC made on 22 October 2015 pursuant to the Court Suppression and Non-Publication Orders Act2010 (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 Act1912 (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.

161. LATHAM J: I agree with Hoeben CJ at CL

162. PRICE J: I agree with Hoeben CJ at CL.

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Amendments

15 February 2021 - Publication restricted has been lifted - criminal prosecution of the appellants has been finalised.

Decision last updated: 15 February 2021