Lee v Attorney-General for NSW

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

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

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

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