2.Set aside paragraph 2 of the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 April 2013 and, in its place, order that:
(a) the appeal be allowed;
(b)the appellant's convictions be quashed; and
(c) a new trial be had.
On appeal from the Supreme Court of New South Wales
Representation
M Thangaraj SC with G A Bashir for the appellant in S313/2013 (instructed by Nyman Gibson Stewart)
T A Game SC with S S Pararajasingham for the appellant in S314/2013 (instructed by Nyman Gibson Stewart)
N J Adams SC with J E Davidson and H R Roberts for the respondent in both matters (instructed by Solicitor for Public Prosecutions (NSW))
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 The Queen
Criminal law – Appeal against conviction – Where appellants gave evidence before New South Wales Crime Commission ("Commission") – Where non-publication direction made under s 13(9) of New South Wales Crime Commission Act 1985 (NSW) – Where transcripts of appellants' evidence before Commission published to members of New South Wales Police Force and officers of Director of Public Prosecutions – Whether publication of appellants' evidence before Commission meant subsequent trial differed in fundamental respect from that which our system of criminal justice seeks to provide – Whether publication of appellants' evidence before Commission gave rise to miscarriage of justice.
Words and phrases – "miscarriage of justice", "non-publication direction".
FRENCH CJ, CRENNAN, KIEFEL, BELL AND KEANE JJ. The appellants and one Brendon Pak were the subject of an investigation by the New South Wales Crime Commission ("the Commission"). As part of that investigation and pursuant to powers given by the New South Wales Crime Commission Act 1985 (NSW) ("the NSWCC Act")[1], the appellants were summoned by the Commission to give evidence before it. These appeals concern the publication of that evidence to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions ("the DPP"). The appellants submit that their joint trial on various drug and firearms offences miscarried as a result of the DPP's possession and possible use of that evidence.
[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.
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Details
AGLC
Lee v The Queen [2014] HCA 20
Case
[2014] HCA 20
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellants against their convictions. The central dispute concerned the publication of transcripts of the appellants' evidence given before the New South Wales Crime Commission, despite a non-publication direction made under s 13(9) of the *New South Wales Crime Commission Act 1985* (NSW). The transcripts were published to members of the New South Wales Police Force and officers of the Director of Public Prosecutions.
The High Court was required to determine whether the publication of the appellants' evidence before the Commission meant that their subsequent trial fundamentally differed from that which the Australian system of criminal justice aims to provide. It also had to consider whether this publication gave rise to a miscarriage of justice.
The Court reasoned that the non-publication direction under s 13(9) of the Act was intended to protect the integrity of the criminal justice process. The publication of the evidence, even to law enforcement and prosecution agencies, undermined this protection. The Court held that the publication constituted a miscarriage of justice because it created a real risk that the appellants' trial would be prejudiced, thereby departing from the fundamental principles of a fair trial. The Court applied the principles relating to miscarriages of justice, emphasizing the importance of ensuring that trials are conducted without unfair prejudice.
Consequently, in each matter, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales, and ordered that the appellants' convictions be quashed and a new trial be had.
Orders
Orders of the court
In each matter:
1. Appeal allowed.
2. Set aside paragraph 2 of the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 April 2013 and, in its place, order that:
(a) the appeal be allowed;
(b) the appellant's convictions be quashed; and
(c) a new trial be had.
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, CRENNAN, KIEFEL, BELL AND KEANE JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, KIEFEL, BELL AND KEANE JJ