FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
JASON LEE (AKA DO YOUNG LEE) & ANOR APPELLANTS
AND
NEW SOUTH WALES CRIME COMMISSION RESPONDENT
Lee v New South Wales Crime Commission
[2013] HCA 39
9 October 2013
S29/2013
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with G A Bashir and S J Free for the appellants (instructed by Nyman Gibson Stewart)
I D Temby QC with E C Muston for the respondent (instructed by New South Wales Crime Commission)
Interveners
J T Gleeson SC, Solicitor-General of the Commonwealth with D F C Thomas for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
M G Sexton SC, Solicitor-General for the State of New South Wales with N J Adams SC and J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))
G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lee v New South Wales Crime Commission
Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.
Words and phrases – "accusatorial system of criminal justice", "derivative use immunity", "direct use immunity", "examination", "fair trial", "principle of legality", "privilege against self-incrimination", "real risk of interference with the administration of justice", "right to silence", "serious crime related activity".
The presumption of innocence, the privilege against self-incrimination and the right to silence are important elements of the "accusatorial system of justice" which generally prevails in the common law world. The privilege against self‑incrimination reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct. It has been said to be partly a result of "a persistent memory in the common law of hatred of the Star Chamber and its works."[1] It is recognised as a human right in international instruments, which apply to both the common law and civil law legal traditions[2]. In the United States, the Fifth Amendment has clothed the privilege "with the impregnability of a constitutional enactment"[3].
[2]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 498 per Mason CJ and Toohey J,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Lee v New South Wales Crime Commission
Sign in free to access the full text
Details
AGLC
Lee v New South Wales Crime Commission [2013] HCA 39
Case
[2013] HCA 39
Decision Date
CaseChat Overview and Summary
The appellants, who had been charged with offences, appealed to the High Court of Australia against orders made by the New South Wales Crime Commission. The Commission had sought and obtained orders under s 31D of the *Criminal Assets Recovery Act 1990* (NSW) requiring the appellants to be examined on oath. The central dispute concerned whether s 31D empowered the Commission to order the examination of a person already charged with offences, where the subject matter of the examination would overlap with the subject matter of those pending criminal proceedings.
The High Court was required to determine whether the *Criminal Assets Recovery Act 1990* (NSW), specifically s 31D(1), permitted the examination of a person charged with an offence concerning the subject matter of that pending charge. This involved considering whether the generally expressed language of s 31D(1) should be construed as fundamentally altering the accusatorial system of criminal justice and the right to silence, particularly in light of the principle of legality and the potential for interference with the administration of justice.
A majority of the High Court, applying the principle of legality, concluded that a statute expressed in general terms should not be construed to authorise an act amounting to a contempt of court. They reasoned that the power to order an examination under s 31D(1) should not be interpreted as extending to situations where it would create a real risk of interference with the administration of justice, such as by compelling a person charged with an offence to provide evidence that could be used against them in their pending trial. This interpretation was considered necessary to protect the fundamental rights of an accused person within the accusatorial system of criminal justice.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
(dissent)
HAYNE J
In considering the application of the principle of legality to the construction of the CAR Act it is also necessary to have regard to the following propositions: •Where the public policy of a statute and its purpose are identified with sufficient clarity, the option of making a constructional choice protective of common law rights may be precluded[161].•The fact that statutory powers are conferred upon a court to be exercised judicially tends in favour of a more liberal construction of those powers than in the case in which they are conferred on a non-judicial body[162]. The above matters, in the light of the authorities already discussed, in my opinion, are sufficient to support a conclusion that as a matter of necessary intendment the power to order an examination would extend to orders of the kind made by the Court of Appeal in this case. [161]Mortimer v Brown (1970) 122 CLR 493 at 499 per Walsh J.[162]Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at 492 [10] per Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ, quoting Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J.Conclusion For the preceding reasons the appeal should be dismissed with costs. I agree with Kiefel J that, for the reasons her Honour gives, the appeal should be allowed and the orders of the Court of Appeal of the Supreme Court of New South Wales should be set aside. The critical question in the appeal is whether the power given to the Supreme Court of New South Wales, by s 31D(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act"), to order the examination on oath of a person "concerning the affairs of the affected person" permitted the Court to order the examination of a person charged with, but not yet tried for, an offence about the subject matter of the pending charge. If s 31D(1) permitted the making of such an order, and an order was made, the person being examined would not be excused[163] from answering any question on the ground that the answer might incriminate, or tend to incriminate, the person, or make the person liable to forfeiture or penalty. Should the generally expressed language of s 31D(1) be construed as working such a fundamental alteration to the accusatorial process of criminal justice? [163]ss 13A(1) and 31D(3). Kiefel and Bell JJ and I answer that question "No". Four points must be made about arguments advanced in support of the contrary conclusion. Separate, but overlapping with the right of a person charged with a criminal offence to a fair trial and available to protect that right, is the power that inheres in a court to restrain as a contempt conduct giving rise to a real risk of interference with the administration of justice. There is a corresponding principle, itself an application of same general principle of statutory construction, that "[a] statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court"[591]. [591]Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 473; [1982] HCA 65.