Lee v New South Wales Crime Commission

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.