Lee v Director of Public Prosecutions (Cth)

The applicant, Mr Lee, sought leave to appeal to the Court of Appeal of New South Wales from a judgment of Hidden J. The dispute concerned the application of the *Proceeds of Crime Act 2002* (Cth) and the extent to which it abrogated the common law privilege against self-incrimination. Mr Lee was subject to a restraining order over certain assets, and the Director of Public Prosecutions sought to obtain an examination order under section 180 of the Act, which would require Mr Lee to attend an examination concerning his financial affairs.

The central legal issues before the Court of Appeal were whether the privilege against self-incrimination was abrogated by the *Proceeds of Crime Act 2002* (Cth) in the context of an examination order sought under section 180, and whether a stay of proceedings was justified to protect Mr Lee's fundamental right against self-incrimination, particularly given that no charges had yet been laid. The Court also considered whether the Act provided sufficient protection through its provisions for immunity from the use of answers in evidence.

The Court of Appeal reasoned that the *Proceeds of Crime Act 2002* (Cth) was intended to operate in a manner that facilitated the confiscation of the proceeds of crime. It applied a purposive construction to the Act, finding a clear statutory intention to override the privilege against self-incrimination in the context of examinations conducted under section 180. The Court noted that the Act provided a statutory immunity from the use of answers given in an examination in subsequent criminal proceedings, which was considered a sufficient safeguard. Consequently, the Court held that a stay of proceedings was not justified to protect the privilege against self-incrimination.

The Court of Appeal granted leave to appeal, dispensed with the usual filing and service requirements for the amended notice of appeal, but ultimately dismissed the appeal. Mr Lee was ordered to pay the Director's costs in the Court.