Lee v The Queen

[2013] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68

Hearing dates:

23 August and 12-13 November 2012

Decision date:

03 April 2013

Before:

Basten JA at [1];
Hall J at [237];
Beech-Jones at [247]

Decision:

(1) With respect to the convictions of Mr Jason Lee:

(a) grant leave to appeal on grounds 1(a) and (b) and 5, but refuse leave with respect to grounds 2, 3, 4 and 6;

(b) with respect to the grounds the subject of a grant of leave, dismiss the appeal.

(2) With respect to the convictions of Mr Seong Won Lee on counts 1-4 and 7:

(a) grant leave to appeal on each ground, other than ground 2;

(b) with respect to the grounds the subject of a grant of leave, dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal - applicants questioned at a hearing before the New South Wales Crime Commission - non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) - transcripts of interview and compelled documents provided to Director of Public Prosecutions in breach of non-publication direction - concession that provision of material unlawful - whether provision of materials to the Director denied the applicants' right to a fair trial or otherwise created a miscarriage of justice

ADMINISTRATIVE LAW - functions of the New South Wales Crime Commission - obligation to furnish admissible evidence on the Director - whether obligation limits the power of the Commission to furnish other material to the Director

CRIMINAL LAW - appeal - failure to warn the jury about particular matters relevant to the reliability of a witness - whether the trial judge misdirected the jury

CRIMINAL LAW - appeal - whether verdicts were unreasonable and unsupported by the evidence - approach of appellate court in determining this ground - evidence in support of the case circumstantial - evidence of key witness consistent with this evidence - reliability and adequacy of witness's evidence in question - where the jury had the advantage of assessing the witness

CRIMINAL LAW - appeal - where applicant alone charged with possession - where trial judge gave directions allowing the applicant to be convicted on the basis of joint possession - whether the trial judge misdirected the jury

CRIMINAL LAW - appeal - applicants charged with supply of prohibited drugs - one applicant charged in the alternative with knowingly taking part in supply - trial judge gave directions allowing conviction on the basis of joint possession with others, or individually - whether trial judge misdirected the jury

CRIMINAL LAW - appeal - evidence - nature of "consciousness of guilt" reasoning

Legislation Cited:

Australian Crime Commission Act 2002 (Cth), s 25A
Crime Commission Act 2012 (NSW)
Criminal Appeal Act 1968 (UK), s 2
Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
Criminal Appeal Rules (NSW), r 4
Director of Public Prosecutions Act 1986 (NSW), s 15A
Evidence Act 1995 (NSW), s 165
Firearms Act 1996 (NSW), ss 4A, 7
National Crime Authority Act 1984 (Cth)
New South Wales Crime Commission Act 1985 (NSW), ss 3, 3A, 5A, 6, 7, 8, 13, 16, 18, 18B, 24, 25, 27A, 29, 32; Pt 3
Police Offences Act 1915 (Vic), s 40
Public Sector Employment and Management Act 2002 (NSW)
Royal Commissions Act 1902 (Cth), 6A
State Drug Crime Commission Act 1985 (NSW)
State Drug Crime Commission (Amendment) Act 1990 (NSW), Sch 1
Weapons Prohibition Act 1988 (NSW), ss 4, 7

Cases Cited:

A v Hayden [No 2] [1984] HCA 67; 156 CLR 532
Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258
Baini v The Queen [2012] HCA 59; 87 ALJR 180
Cesan v The Queen [2008] HCA 52; 236 CLR 358
Dib v R (1991) 52 A Crim R 64
Dietrich v The Queen [1992] HCA 57; 177 CLR 292
Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1
Doney v The Queen [1990] HCA 51; 171 CLR 207
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; 178 CLR 447
Fleming v The Queen [1998] HCA 68; 197 CLR 256
Fox v Percy [2003] HCA 22; 214 CLR 118
Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188
Hargan v The Queen [1919] HCA 45; 27 CLR 13
Hocking v Bell [1945] HCA 16; 71 CLR 430
Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
Libke v The Queen [2007] HCA 30; 230 CLR 559
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Moors v Burke [1919] HCA 32; 26 CLR 265
Naxakis v Western General Hospital [1999] HCA 22; 197 CLR 269
NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
The Queen v Apostilides [1984] HCA 38; 154 CLR 563
The Queen v Ireland [1970] HCA 21; 126 CLR 321
The Queen v Nguyen [2010] HCA 38; 242 CLR 491
R v Birks (1990) 19 NSWLR 677
R v CB; NP v R [2011] NSWCCA 264
R v Klamo [2008] VSCA 75; 18 VR 644
R v R (1989) 18 NSWLR 74
R v Scott (1996) 131 FLR 137
R v Seller; R v McCarthy [2013] NSWCCA 42
R v Wan [2003] NSWCCA 225; 140 A Crim R 513
Raad v R [2012] NSWCCA 268
Raspor v The Queen [1958] HCA 30; 99 CLR 346
Ridgeway v The Queen [1995] HCA 66; 184 CLR 19
SD v New South Wales Crime Commission [2013] NSWCA 48
Simic v The Queen [1980] HCA 25; 144 CLR 319
SKA v The Queen [2011] HCA 13; 243 CLR 400
Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281
TKWJ v The Queen [2002] HCA 46; 212 CLR 124

Texts Cited:

Frederick Pollock and Robert Wright, An Essay on Possession in the Common Law (1888)

Glass JA, "The insufficiency of evidence to raise a case to answer" (1981) 55 ALJ 842

A Palmer, "Guilt and the Consciousness of Guilt: the use of lies, flight and other 'guilty behaviour' in the investigation and prosecution of crime" (1997) 21 Melb U L Rev 95

Category:

Principal judgment

Parties:

In matters 2009/276079 and 2010/119443:
Seong Won Lee (Appellant)
Crown (Respondent)

In matter 2009/280798:
Do Young Lee (Appellant)
Crown (Respondent)

Representation:

Counsel:

In matters 2009/276079 and 2010/119443:

Mr T Game SC, Mr S S Parajasingham (Appellant)
Ms N J Adams/Ms J Davidson (Respondent)

In matter 2009/280798:

Mr M Thangaraj SC, Ms G A Bashir (Appellant)
Ms N J Adams, Ms J Davidson (Respondent)

Solicitors:

Nyman Gibson Stewart (Appellants)
Director of Public Prosecutions (Respondent)

File Number(s):

2009/276079; 2010/119443; 2009/280798

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

16 March 2011

Before:

Solomon DCJ

File Number(s):

DC 2009/276079; DC 2010/119443; DC 2009/280798;

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 7 December 2009, New South Wales Police searched an apartment in Waterloo, Sydney. During the search, the Police discovered a number of firearms and firearms accessories, a quantity of white powder (later found to contain pseudoephedrine) and a large amount of cash. Some of these items were found in the laundry of the apartment; others were found in the locked main bedroom, together with papers in the name of Jason Lee. Mr Seong Won Lee, who lived in the apartment at the time, was charged with several offences relating to the weapons and drugs found in the laundry. He was convicted on all counts relating to the weapons and of knowingly taking part in supplying the drugs. Mr Jason Lee was charged with offences relating to the weapons and drugs found in both the laundry and the bedroom. He was convicted on all counts related to items found in the bedroom and of supplying the drugs found in the laundry.

During 2009, investigations had been underway into the importation of washing powder from Korea, by a company associated with Mr Brendan Pak. During the appellants' trial, Brendan Pak gave evidence that supported the Crown case that the appellants were involved in the supply of pseudoephedrine. Brendan Pak was a witness who "might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings [against the appellants]", within the terms of s 165(1)(d) of the Evidence Act 1995 (NSW).

Each of the appellants had been summoned to appear at a hearing of the Crime Commission for examination, pursuant to s 16 of the New South Wales Crime Commission Act 1985 (NSW). Jason Lee appeared before the Crime Commission before the search had been carried out and before he was charged. Seong Won Lee appeared after he was charged with the firearms offences, but before the powder had been identified as containing drugs, and before he was charged with supply of the drugs. His questioning did not relate to the firearms charges. Each of the appellants was required to answer questions and, in the case of Jason Lee, to produce certain documents. Commission staff showed these documents to persons whose signatures appeared on them. Statements were obtained from these signatories and copies of the compelled documents were attached to the statements.

Section 13 of the Crime commission Act relevantly provided:

"13 Hearings

...

(9) The Commission may direct that:

(a) any evidence given before it,

(b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11,

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence."

The Commissioner gave a non-publication direction in respect of evidence given during Jason Lee's hearing, pursuant to s 13(9) of the Crime Commission Act. No similar order was made with respect to Mr Seong Won Lee's evidence. Before the trial, the Commissioner released the transcripts of the appellants' evidence to the Director of Public Prosecutions, together with the statements attaching documents compelled from Jason Lee. The Director conceded that he had been unlawfully supplied with the transcripts of the interviews.

The present appeal involved challenges by each of the appellants to their respective convictions. The issues for determination on appeal were:

(i) whether the prosecutor's possession or use of the appellants' transcripts of interview denied the appellants' right to a fair trial or created a miscarriage of justice;

(ii) whether the trial judge failed to give adequate directions to the jury as to the unreliability of the evidence of Brendan Pak;

(iii) whether there was a miscarriage of justice, arising because the verdicts were unreasonable and unsupported by the evidence;

(vi) whether the trial of Jason Lee miscarried in respect of counts 5 and 8 because the trial judge gave directions as to joint possession regarding counts alleging individual possession;

(v) whether the trial judge gave erroneous directions regarding Jason Lee's possession of drugs found in the laundry in count 6, and

(vi) whether, in relation to evidence of conversations between Jason Lee and Brendan Pak, the prosecutor relied on "consciousness of guilt reasoning" in breach of the trial judge's directions.

The Court held, dismissing the appeal:

In relation to (i)

(per Basten JA, Hall and Beech-Jones JJ agreeing)

1. Accepting that the obligation to make a direction protective of a fair trial has arisen, it does not follow that all forms of publication or dissemination of the material must be prohibited. The proper construction of the Crime Commission Act depends in part upon general law principles governing criminal investigations and trials. However, none of the authorities relied upon addressed the question whether the disclosure of information to the prosecutor could lead to a miscarriage of justice at a criminal trial. The closest the authorities approached the present case was in expressing opinions as to the circumstances in which there might be prejudice to a fair trial, sufficient to require a commission to make a non-publication order. Accordingly, the reasoning in these cases does not govern the present case: [54], [60], [62] and [85].

SD v New South Wales Crime Commission [2013] NSWCA 48; Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258; R v CB; MP v R [2011] NSWCCA 264; R v Seller; R v McCarthy [2013] NSWCCA 42 considered and distinguished.

2. Jason Lee did not demonstrate that the release to the prosecutor of the transcripts of his interviews with the Commission, or the documents produced under compulsion, created any practical unfairness. The compelled documents did not preclude any strategy otherwise available to the defence and, having been found independently during a police search, were in any event available to be tendered. Regarding the transcripts, nothing in them related to the trial as it in fact ran: [146], [147] and [149].

3. Seong Won Lee did not establish a miscarriage of justice for three reasons. First, there is no authority for proposition that, merely because the prosecution possesses inadmissible material potentially relevant to the defence of the accused, the trial will therefore be unfair. Second, there was no objective unfairness in the conduct of the trial resulting from the dissemination of his interview. Third, no objection was taken at trial, despite the appellant being well aware of all the material in the prosecution brief well before the trial commenced. Where no actual unfairness arose in the trial, this last factor is itself fatal to this ground of appeal: [162], [163] and [164].

Baini v The Queen [2012] HCA 59; 87 ALJR 180 considered.

In relation to (ii)

(per Basten JA, Hall and Beech-Jones JJ agreeing)

4. The jury understood that Brendan Pak had changed his story after threats that he would be charged and following statements which appeared to promise a financial benefit. The failure of the judge to give the weight of his authority to such concerns was of limited significance. Reading the summing up as a whole, the jury can have been left in no doubt as to the dangers associated with reliance upon Brendan Pak's evidence, to which reference was made on multiple occasions: [172] and [174].

In relation to (iii)

(per Basten JA, Hall and Beech-Jones JJ agreeing)

5. The function of the appellate court is to review the facts and not merely determine as a question of law whether there was evidence available which would have supported a verdict, disregarding contrary evidence. However, this does not require re-evaluation of all the facts and arguments run at trial, without the need for identified complaints from the appellant. Such an approach would disregard the respective functions of the jury and the appellate court: [194], [195] and [210].

M v The Queen [1994] HCA 63; 181 CLR 487; SKA v The Queen [2011] HCA 13; MFA v The Queen [2002] HCA 53; 213 CLR 606; Libke v The Queen [2007] HCA 30; 230 CLR 559; R v R (1989) 18 NSWLR 74 and Fox v Percy [2003] HCA 22; 214 CLR 118 considered.

6. Leave for Jason Lee to appeal on this ground should be refused. Firstly, the evidence given at trial by Brendan Pak was not inherently implausible. On reading the transcript, it is not apparent that he was lying. As the jury accepted this evidence, and had the significant advantage of seeing the witness at trial, the court should not come to a different conclusion. Secondly, there was no reason to doubt that Jason Lee had control of the locked bedroom. There was considerable evidence that he had lived in the premises and kept personal possessions there. Once it was accepted that he had such control, the combination of drugs, money and a gun strongly indicated possession of drugs for the purpose of supply. Finally, the evidence established that the white powder found at the Waterloo apartment did contain pseudoephedrine. There was no significant challenge to the evidence given by the drug analysts: [211], [216], [219], [220] and [224].

7. Seong Won Lee's appeal on this ground should be rejected. The Crown relied on several matters, including the evidence of Brendan Pak, to establish that Seong Won Lee knew that his father supplied the drugs found in the laundry. Had Brendan Pak's evidence about Seong Won Lee not been accepted, the other evidence may have been sufficiently equivocal to create a reasonable doubt in the mind of the Court. However, it was open to the jury, which saw Brendan Pak, to accept his evidence: [228], [234] and [235].

In relation to (iv)

(per Beech-Jones J, Basten JA and Hall J agreeing)

8. This ground of appeal misstates the Crown case in respect of counts 5 and 8. Although the Crown charged only Jason Lee with possession, the Crown did not confine itself to a case of sole possession by Jason Lee: [261].

9. In directing the jury, the trial judge referred to Jason Lee being in possession "either alone or together with some person acting jointly with him" in committing the offences. There was no error, much less a miscarriage of justice, in these directions. The directions did not undermine the exculpatory effect of the evidence of the presence of others in the main bedroom but instead enabled the jury to consider it in its correct legal context: [262].

Dib v R (1991) 52 A Crim R 64; Moors v Burke [1919] HCA 32; 26 CLR 265 and R v Wan [2003] NSWCCA 225; 140 A Crim R 513 considered.

In relation to (v)

(per Beech-Jones J, Basten JA and Hall J agreeing)

10. Contrary to Jason Lee's contention, the Crown case was not confined to alleging that he jointly possessed the drugs in the laundry with Seong Won Lee. The Crown case was that there was joint possession by both appellants or individual possession by either (or with others). Accordingly, the Crown case would not fail if the Crown failed to prove possession by the other: [270] and [275].

11. The instructions His Honour gave to the jury in relation to count 6 properly reflected the Crown case and conveyed the essential aspects of possession. The direction emphasised the need for exclusivity on the part of each accused except for those who were "acting jointly with [each accused] in committing the offence". This encompassed each accused if they were in joint possession, a scenario the jury rejected. Otherwise the direction enabled the jury to find either accused in possession: [284].

Moors v Burke [1919] HCA 32; 26 CLR 265 considered.

In relation to (vi)

(per Basten JA, Hall and Beech-Jones JJ agreeing)

12. The submissions on this ground assumed that the prosecution had inappropriately invited "consciousness of guilt reasoning". These submissions contained numerous flaws. First, the trial judge did not rule that the evidence could not be used in this way. Second, the prosecution did not rely on the conversations as an "indispensable link" in establishing that Jason Lee knew of the existence of the drugs. Finally, the reference to Edwards v The Queen [1993] HCA 63; 178 CLR 193 was inapposite. Edwards concerned a lie told by an accused about an event connected with the offence. By contrast, in the present case, the prosecution sought to rely upon Jason Lee's statements to Brendan Pak, not as untruthful or misleading, but as revealing his knowledge about the contents of the boxes of washing powder: [186] and [187].

Edwards v The Queen [1993] HCA 63; 178 CLR 193 considered.

Judgment

INDEX

Paragraph
Issues on appeal			6
Ground 1: Dissemination of Crime Commission records
(a)	procedural background		12
(b)	concession by Director		21
(c)	miscarriage of justice		29
(d)	statutory scheme for compulsory examination		38
(e)	Commonwealth legislation		59
(f)	authorities		60
(g)	factual background		87
(h)	application of principles
(i)	unauthorised exercise of delegated power	119
(ii)	failure to approve 'publication'	124
(iii)	Jason Lee's case	131
(iv)	Seong Won Lee's case	150
Ground 2: Evidence of Brendon Pak			166
Grounds 4 and 5			176
Ground 6: Post-search conversations			177
Unreasonable verdict grounds
(a)	general principles		190
(b)	"miscarriage of justice"		196
(c)	application of principles: Jason Lee		211
(d)	application of principles: Seong Won Lee		226
Conclusions			236

1. BASTEN JA: On 7 December 2009 New South Wales Police executed a search warrant at an apartment in Lachlan Street, Waterloo in inner Sydney. In the course of the search they discovered two weapons (with ammunition and accessories) and a quantity of white powder (in a box labelled washing powder) later found to contain pseudoephedrine. Mr Seong Won Lee, who was then living in the apartment with his girlfriend, returned in the course of the police search. He was arrested and charged with four counts relating to a sub-machine gun and accessories discovered in the laundry of the apartment. The other gun (a revolver) and a quantity of white powder were found in the main bedroom of the apartment, together with various papers in the name of Jason Lee, a name by which Mr Do Young Lee is also known. The main bedroom in which this material was discovered was locked. A large amount of cash, in excess of $1 million, was also discovered in the locked bedroom.

1. Mr Jason Lee is the father of Mr Seong Won Lee. On 14 December 2009 Mr Jason Lee was charged in respect of the cash, which was alleged to be the proceeds of crime, with possession of the machine gun and accessories in the laundry, and with possession of the revolver found in the locked bedroom.

1. There was some delay in identifying the white powder as containing pseudoephedrine, both appellants being charged with two further offences involving supply of prohibited drugs on 13 May 2010 (Jason Lee) and 17 May 2010 (Seong Won Lee).

1. The applicants were tried together in the District Court, a jury returning verdicts of guilty on various counts on 16 March 2011. Mr Jason Lee was sentenced by Solomon DCJ to a non-parole period of nine years, six months with a four year balance of term, giving a total sentence of 13 years, six months, commencing on 14 December 2009. Mr Seong Won Lee was sentenced to a non-parole period of five years six months, with a balance of term of three years giving a total sentence of eight years six months, commencing on 30 April 2010.

1. The present appeal involved challenges by each of the offenders to their respective convictions. Because the grounds do not involve questions of law alone, leave is required: Criminal Appeal Act 1912 (NSW), s 5(1)(a). The issues raised with respect to ground 1 give rise to questions of general public importance concerning the powers of the New South Wales Crime Commission (referred to below as "the Crime Commission" or "the Commission") and the protection of the fairness of criminal trials. There should be a grant of leave to appeal against conviction on ground 1 in each case. The other grounds, which concern the reliability of the key witness for the prosecution and challenge directions in respect of joint possession of drugs and a firearm located in the laundry, and challenge the verdicts as unsafe and unsupported by the evidence. Leave to appeal is required and should be refused in the case of Jason Lee, for grounds 2, 3, 4 and 6 and in the case of Seong Won Lee, for ground 2. Leave, if required should be granted in relation to the remaining grounds. Accordingly it is convenient hereafter to refer to the applicants as the appellants. (They will be addressed by name when it is necessary to distinguish their respective positions.)

Issues on appeal

1. By indictment dated 31 January 2011, the Director laid eight charges, all of which were said to have occurred on 7 December 2009 at Waterloo. In short form they were as follows:

(1) possess a prohibited firearm, namely a submachine gun (both appellants);

(2) possess a prohibited weapon, namely a silencer (both appellants);

(3) possess a prohibited weapon, namely two firearm magazines (both appellants);

(4) possess a prohibited weapon, namely a brass catcher (both appellants);

(5) possess a pistol, namely a six chamber revolver (Mr Jason Lee);

(6) supply a prohibited drug, namely pseudoephedrine, in an amount not less than the large commercial quantity (both appellants);

(7) knowingly take part in the supply of a large commercial quantity of pseudoephedrine (Mr Seong Won Lee), and

(8) supply not less than the large commercial quantity of pseudoephedrine (Mr Jason Lee).

1. On each of counts 1-4, being the firearms counts relating to items found in the laundry of the unit in Waterloo, Mr Seong Won Lee was convicted and Mr Jason Lee was acquitted. Mr Seong Won Lee was also found guilty on count 7, but acquitted on count 6. Thus, Mr Seong Won Lee was acquitted of supply, but convicted of knowingly taking part in the supply of the drugs located in the laundry.

1. Mr Jason Lee was found guilty on counts 5, 6 and 8. Counts 5 and 8 (brought only against Mr Jason Lee) related to the weapon and drugs found in the locked bedroom. Count 6 related to a deemed supply of the pseudoephedrine located in the laundry. Thus, the jury acquitted Mr Jason Lee of the four charges relating to the firearms found in the laundry, but found him guilty in respect of supply of the pseudoephedrine found in the locked bedroom and that found in the laundry.

1. Following amendments made between the first and second days of the appeal, the grounds raised by Mr Jason Lee were as follows:

1(a) The Trial miscarried by virtue of an irregularity going to the root of the proceedings, namely the illegal release of the appellant's compulsory examination before the NSW Crime Commission to the DPP and its use by the prosecutor in the trial.

1(b) There was a miscarriage of justice in the appellant's trial, occasioned by the use of the documents and evidence compelled from the appellant on or about 26 November 2009 and 1 December 2009 in the brief of evidence and the trial of the appellant on charges of supply prohibited drugs and possession of a revolver.

2 The Trial judge erred in his directions as to the unreliability of Pak's evidence, such as to constitute a miscarriage of justice in the trial.

3 The verdicts on Counts 5, 6 and 8 [were] unreasonable and cannot be supported by the evidence.

4 The trial on Counts 5 and 8 miscarried by virtue of directions as to joint possession being given on Counts 5 and 8, when in fact those Counts were Counts alleging individual possession of a firearm (Count 5) and a large commercial quantity of pseudoephedrine (Count 8).

5 The directions of the trial judge in relation to the element of possession by the appellant of the subject found in the laundry (Count 6) were erroneous.

6 The trial miscarried owing to the Crown prosecutor relying on consciousness of guilty reasoning in relation to a conversation (evidence Pak) and telephone calls (Exs AN, AO) between Pak and the applicant in breach of the trial judge's ruling and the failure of the trial judge to direct the jury as to the proper use that could be made of the conversations and the manner in which they could not be used.

1. In relation to Mr Seong Won Lee the grounds, as amended, were as follows:

1(a) The Trial miscarried due to the prosecutor's possession of the appellant's compulsory interview which denied the appellant's right to a fair trial.

1(b) There was a miscarriage of justice in the appellant's trial, occasioned by the use of the evidence compelled from the appellant on or about 16 December 2009 in the brief of evidence and the trial of the appellant.

2. The directions given by the learned trial judge in relation to the unreliability of the witness Mr Pak were inadequate. There was a miscarriage of justice.

3. The verdicts of guilty on counts 1, 2, 3 & 4 are unreasonable and cannot be supported having regard to the evidence.

4. The verdict of guilt on count 7 is unreasonable and cannot be supported having regard to the evidence.

1. It is convenient to deal first with ground 1 in respect of each appellant, being grounds which raise questions as to the procedures adopted by the Crime Commission. It is then convenient to address the grounds containing precise complaints concerning the directions given at the trial before dealing lastly with the grounds asserting that various verdicts were unreasonable and cannot be supported by the evidence.

Ground 1: Dissemination of Crime Commission records

(a) procedural background

1. Each of the appellants had, prior to trial, been summoned to appear at a hearing of the Crime Commission for examination, pursuant to s 16 of the New South Wales Crime Commission Act 1985 (NSW) ("the NSW Crime Commission Act"). Each contended that his convictions involved a miscarriage of justice because a transcript of his evidence before the Commission had been released to the Director of Public Prosecutions before the trial. This challenge was formulated in different ways by each appellant and reformulated during the course of the appeal.

1. The circumstances of the appellants, relevant to ground 1, varied. It is convenient to set out the general background to both together, but it is necessary to consider the specific circumstance of each appellant separately in applying the relevant principles to the facts.

1. The original ground (1(a) in each case) alleged that mere possession by the prosecutor of the transcripts of the Crime Commission interviews with each appellant gave rise to a miscarriage of justice. However, the submissions focused on the assertion that the documents had been furnished to the Director unlawfully. The second limb, alleging "use" of the interviews and (in the case of Jason Lee) certain documents produced under compulsion, in fact raised little more than their availability in the prosecutor's brief. Each limb of this ground gave rise to a factual issue

1. The appeal was conducted in two tranches, some months apart, with both parties refining their submissions and proffering further evidence following the first day of the hearing. The appellants accepted that to succeed on ground 1 they needed to demonstrate that the release of the records of the compulsory examinations to the Director had given rise to a miscarriage of justice. However, they did not initially tender the examinations in this Court, so that the argument on the first day proceeded without reference to the content of the critical documents.

1. The focus of the appellants' argument changed between the first part of the hearing and the second. On the first day, Mr Thangaraj SC, who appeared for Mr Jason Lee, presented an argument based on the more limited original ground 1 and without reference to the evidence which became available at the second stage of the hearing. At the second stage, Mr Game SC, for Mr Seong Won Lee, gave the argument a different focus, in a manner accepted by senior counsel for Mr Jason Lee: CCA Tcpt, 12/11/12, p 96(50).

1. The Commission exercised a number of powers, namely:

(a) requiring each of the appellants to attend a hearing before the Commissioner and answer questions;

(b) in respect of Mr Jason Lee, requiring production of documents, and

(c) releasing the transcripts (and produced documents) to the Director of Public Prosecutions for inclusion in the prosecutor's brief on the trial of the appellants.

1. Broadly speaking, each step was said to be beyond the powers of the Crime Commission and, in that sense, unlawful. To understand those submissions it is necessary to consider both the statutory structure within which the Crime Commission operated and the chronology of events in respect of each appellant.

1. One aspect of the appellants' cases was common and did not change. Both contended that the consequence of the unlawful conduct of the Crime Commission was that a risk of prejudice was created, so that neither appellant obtained a fair trial. Neither appellant sought to establish any demonstrable element of unfairness and, indeed, they submitted that to adopt such a course would be both unnecessary and inappropriate.

1. There was no constitutional challenge to the validity of the legislative scheme under which the compulsory interviews and the notice for production of documents occurred. In a sense that is understandable: there is a long history of legislation, both at federal and State level (and not limited to this country) providing for compulsory interrogation and production of documents in aid of the investigation of criminal and other illegal activity. Rather, the submissions focused on the need for such a legislative scheme to accommodate the essential elements of a criminal trial, which was the ultimate goal of the exercise of the statutory powers. The appellants submitted that it would subvert the primary purpose of the NSW Crime Commission Act to construe the legislation in a way which would undermine the fairness of a criminal trial or give rise to a contempt of the court conducting such a trial. To support that approach, the appellants relied upon aspects of the legislation which demonstrated an intention to avoid undue interference with the traditional elements of the criminal process, with which limitations, it was contended, there had not been compliance.

(b) concession by Director

1. In the first set of written submissions filed by the Crown Advocate on behalf of the Director, dated 21 August 2012, it was conceded that "the dissemination to the DPP was unlawful": par 7. It was further conceded that the appellants' trial miscarried in respect of the drug charges, but not in respect of the weapons charges. It was not accepted that a verdict of acquittal or a permanent stay would be an appropriate remedy: par 8.

1. It is desirable to set out the terms of the concession, which was qualified (par 9):

"In making such a concession the Crown does not accept that the mere fact that the prosecution was in possession of the transcript unlawfully by itself can, and did in this case, amount to a miscarriage of justice. The question of whether the possession of the transcript amounts to a miscarriage of justice does not turn on the question of possession of the transcript per se, but rather involves a qualitative analysis of the evidence and issues at trial, the nature of the questions asked and the transcript obtained and the chronology in which the transcript came into existence and was disseminated relative to charges laid or contemplated at the relevant time, as well as the role of the recipient in the prosecution team and the purpose of the dissemination. The Crown submits that in each case such individual assessment of that factual matrix would need to be undertaken to determine whether there has been a miscarriage of justice. In making the concession ... the Crown accepts that if the Court undertook the individual assessment required in this matter in relation to [the drug charges]..., the Court would be satisfied that the DPP's possession of the transcript in this case in fact led to a miscarriage of justice."

1. As has been noted, when the matter was first listed for hearing, no party sought to make the Crime Commission transcripts available to the Court. The appellants contended that such a course was unnecessary and that a miscarriage flowed from the known circumstances, without reference to the content of the transcripts. The Director submitted that the content was relevant and had been taken into account in making the concession. However, the parties remained at odds as to the appropriate relief and as to whether the dissemination of the transcripts infected the whole of the trial or only so much as concerned the drug charges.

1. In the event, it became unnecessary for the Court to explore the propriety of the course adopted by the parties as, following the first day of the appeal, arrangements were made for the Court to have the transcripts of the appellants' evidence before the Crime Commission. Further, the Crown Advocate withdrew the concession that there had been a miscarriage of justice in respect of the drug convictions and submitted that "the answer to the question of whether a miscarriage arose should be the same in relation to both the drugs and the weapons counts": supplementary written submissions, 2 November 2012, par 1.

1. Two further aspects of the concession should be identified. First, the circumstances of the appellants differed in that the Commissioner gave a non-publication direction during the hearing with Mr Jason Lee, pursuant to s 13(9) of the Crime Commission Act. No similar order was made with respect to Mr Seong Won Lee's evidence. Nevertheless, the Crown Advocate accepted that such an omission was not fatal to the case of Mr Seong Won Lee and that the release of the transcripts was the same in each case, and had been irregular. That there may be a limitation on the power of dissemination, whether or not an order has been made under s 13(9), is consistent with the analysis of the Court of Appeal in SD v New South Wales Crime Commission [2013] NSWCA 48 at [33].

1. Secondly, as was made clear in oral submissions, while the Commissioner had approved the release of the transcripts to the Director, "when the Commissioner turned his mind to disseminating the documents it was not ... for a proper purpose because it was ... to assist the DPP": CCA Tcpt, 13/11/12, p 24(5).

1. There was an additional issue with respect to the circumstances of Mr Jason Lee. In the course of giving evidence before the Crime Commission, he was directed to produce documents said to evidence the source of certain amounts of money in his possession. The documents were shown by staff of the Crime Commission to persons whose signatures appeared on them ("the signatories"). Statements were obtained from the signatories and copies of the documents were annexed to the statements. Those statements, with the annexed documents, were provided to the prosecutor, with the transcripts of his interviews.

1. The appellant Jason Lee did not complain about disclosure of the documents to the signatories, nor did he complain about the provision to the prosecutor of the statements obtained from the signatories. Rather, he asserted that the release to the prosecutor of the statements annexing the compelled documents gave rise to a miscarriage of justice. Because the original ground 1 did not refer to the release of the compelled documents, the concession made by the Crown Advocate did not in terms extend to the provision of this material to the prosecutor. The Director's position appeared to be that because the statements and the annexed documents constituted evidence derived from compelled material, as to which there was no immunity from use under the Crime Commission Act, their disclosure could not give rise to a miscarriage of justice.

(c) miscarriage of justice

1. This ground engaged the third limb of the criteria for a criminal appeal: the Court shall allow an appeal against conviction if it is of the opinion that there has been "a miscarriage of justice" on any ground whatsoever: Criminal Appeal Act, s 6(1), the scope of which language was recently explained by Gageler J in Baini v The Queen [2012] HCA 59; 87 ALJR 180 at [53]-[56].

1. Gageler J in Baini stated that the third limb will be made out "only where the appellant is able to establish a causal connection between the irregularity and the conviction in the sense that, but for the irregularity, the result might have been different and the appellant might have been acquitted": at [54], referring to TKWJv The Queen [2002] HCA 46; 212 CLR 124 at [72]-[73] (McHugh J) and Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at [38], [49] and [60] (McHugh and Gummow JJ) (in a case where the trial judge had failed to give a direction to the jury, which was not sought by the appellant at trial).

1. The effect of the word "other" is to indicate that the language of miscarriage is additional to the first two limbs, namely that the verdict was unreasonable or cannot be supported having regard to the evidence available at trial (the first condition) and that the judgment below was afflicted by a "wrong decision of any question of law" (the second condition).

1. Most cases successfully invoking the third limb fall into one of the following categories:

(a) conduct of the trial judge - Simic v The Queen [1980] HCA 25; 144 CLR 319 (inaccurate direction to the jury as to the evidence); Cesan v The Queen [2008] HCA 52; 236 CLR 358 (judge falling asleep and distracting jury from its task);

(b) the conduct of the prosecution - The Queen v Apostilides [1984] HCA 38; 154 CLR 563 (failure to call a witness);

(c) the conduct of defence counsel - R v Birks (1990) 19 NSWLR 677; Nudd v The Queen [2006] HCA 9; 80 ALJR 614; TKWJ (incompetence, including failing to call available evidence).

1. In each of these cases, things were done, or not done, in the course of the trial which were capable of affecting the deliberations and verdict of the jury.

1. The words "on any other ground" have been said not to postulate demonstrable error, but "simply require that 'something occurred or did not occur' in the trial": TKWJ at [30] (Gaudron J). The internal quotation in that passage comes from the judgment of Doyle CJ in R v Scott (1996) 131 FLR 137 at 152 where, with the agreement of Cox and Matheson JJ, the Chief Justice noted that the third condition was engaged "where something occurred or did not occur such that the trial became unfair". Generally, the act or omission will have occurred "in the trial": TKWJ at [30]. Nevertheless, as Doyle CJ recognised, it is the effect of the act or omission on the trial, rather than the circumstances of its occurrence which is critical. A trial may be rendered unfair by extraneous factors, such as delay in bringing a prosecution - Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 - or the inability of an accused to obtain legal representation: Dietrich v The Queen [1992] HCA 57; 177 CLR 292.

1. In addition, there are cases involving improper or unlawful conduct by the authorities investigating crime. However, misconduct of this kind is usually dealt with by excluding evidence, such as an induced confession, the proceeds of an unlawful search, or the product of entrapment. These examples resonate in the present case. First, inducing a confession by threats or trickery does not directly render the subsequent trial unfair. Secondly, in rejecting a defence of entrapment, in Ridgeway v The Queen [1995] HCA 66; 184 CLR 19, Mason CJ, Deane and Dawson JJ noted that even a direction or order of a superior officer in the government would not provide a defence to a criminal charge: at 29-30, referring to A v Hayden [No 2] [1984] HCA 67; 156 CLR 532. However, their Honours referred to the discretionary power to exclude unlawfully obtained evidence at 31-32:

"More importantly, the considerations of 'high public policy' which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained are likewise applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction. In both categories of case, circumstances can arise in which the need to discourage unlawful conduct on the part of law enforcement officers and to preserve the integrity of the administration of criminal justice outweighs the public interest in the conviction of those guilty of crime."

1. As explained by Barwick CJ in The Queen v Ireland [1970] HCA 21; 126 CLR 321 at 334-335, "the discretion to exclude evidence on public policy grounds extended to evidence obtained by 'unfair' as well as 'unlawful' conduct on the part of law enforcement officers: Ridgeway at 36".

1. There remained an issue in Ridgeway as to whether the proceedings should have been permanently stayed. The majority held that they should, not on the basis of an abuse of process, but because, without the evidence of possession of heroin, procured by law enforcement officers, the prosecution was doomed to fail. With respect to the question of abuse, both Brennan J (at 46) and Toohey J (at 61) referred to what they had said on that topic in Jago. Both they and Gaudron J (who considered the proceedings to be an abuse) and McHugh J (who would have countenanced a stay in circumstances where the prosecution would tend to bring the administration of justice into disrepute - at 92) accepted that a stay would be appropriate at least where proceedings were commenced for an improper purpose or were not capable of being the subject of a fair trial: at 46 (Brennan J) and 61 (Toohey J).

(d) statutory scheme for compulsory examination

1. The relevant legislation is the NSW Crime Commission Act, since repealed and replaced by the Crime Commission Act 2012 (NSW). (Many of the provisions discussed below have been retained in the 2012 Act, but there has been a substantial restructuring, with some changes that are more than cosmetic.)

1. The Crime Commission was originally established in 1985 as the State Drug Crime Commission: State Drug Crime Commission Act 1985 (NSW), retitled in 1991: see State Drug Crime Commission (Amendment) Act 1990 (NSW), Sch 1(1). The objects of the Act have, from 1 January 1989, been expressed in the following terms:

"3A Objects

(1) The principal object of this Act is to reduce the incidence of illegal drug trafficking.

(2) The secondary object of this Act is to reduce the incidence of organised and other crime."

1. The following functions of the Commission, relevant for present purposes, are identified in s 6:

"6 Principal functions of the Commission

(1) The principal functions of the Commission are:

(a) to investigate matters relating to a relevant criminal activity referred to the Commission by the Management Committee for investigation,

(b) to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions ...

...

(2) If the Commission obtains any evidence, being evidence that would be admissible in the prosecution of a person for an indictable offence (other than evidence of a relevant offence which is furnished to the Director of Public Prosecutions) against a law of New South Wales ... the Commission shall furnish that evidence:

...

(b) in the case of an offence against a law of New South Wales - to the Director of Public Prosecutions,

together with any recommendation as to action the Commission considers should be taken in relation to that evidence.

...

(5) In exercising its principal functions, the Commission shall give high priority to matters relating to illegal drug trafficking, as far as practicable."

1. Sub-sections 6(1) and (2) distinguish between "a relevant offence" and indictable offences other than relevant offences. The term "relevant offence" is broadly defined to mean a "serious drug offence", an offence involving fraud that the Management Committee is satisfied "is sufficiently serious to warrant its investigation by the Commission" and any other offence as to which the Management Committee is satisfied both that its investigation is in the public interest and that the use of the Commission's functions "may be necessary to fully investigate the offence": s 3(1), relevant offence. (There are exclusions not presently relevant.) The Act defines "relevant criminal activity" to mean "any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, or may be about to be, committed": s 3(1), relevant criminal activity.

1. The Commission is also empowered, with the approval of its Management Committee, to "disseminate intelligence and information to such persons or bodies as the Commission thinks appropriate" (s 7(a)) and to "co-operate and consult with such persons or bodies as the Management Committee thinks appropriate": s 7(b). In addition to specific powers referred to below, there is the following general provision:

"8 Incidental powers of Commission

(1) The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions, and any specific powers conferred on the Commission by this Act shall not be taken to limit by implication the generality of this section."

1. The first function identified in s 6(1)(a) assumes referral of a matter to the Commission by the Management Committee. It was part of the appellants' case that there was an implied temporal condition limiting the scope of any particular reference. It is therefore necessary to note the provisions establishing the Management Committee and the terms on which references could be made. The complaint of unlawful dissemination required a determination as to which persons (particularly identified police officers) were properly classified as part of the Crime Commission.

1. Part 3 of the NSW Crime Commission Act established "the Management Committee" with four members, being the Minister for Police, the Commissioner of Police, the Chair of the Board of the Australian Crime Commission and the Commissioner appointed under s 5A of the Act: s 24(1). The functions of the Management Committee are identified in the following provisions:

"25 Functions of the Management Committee

(1) The principal functions of the Management Committee are:

(a) to refer (by a written notice) matters relating to relevant criminal activities to the Commission for investigation, and

...

(a2) to arrange (in accordance with section 27A) for police task forces to assist the Commission to carry out investigations into matters relating to relevant criminal activities, and

(b) to review and monitor generally the work of the Commission, and

(c) to give approvals for the purposes of section 7.

(2) The Management Committee is not to refer a matter to the Commission for investigation unless it is satisfied that ordinary police methods of investigation into the matter are unlikely to be effective.

(3) The Management Committee may, by the terms of a reference, impose limitations:

(a) on the carrying out of an investigation by the Commission into any matter relating to a relevant criminal activity referred to the Commission for investigation ....

...

(4) The notice referring a matter relating to a relevant criminal activity to the Commission for investigation:

(a) may describe the matter (wholly or partly) by reference to information given at a meeting of the Management Committee or other extrinsic material, whether or not the information or material is included in or annexed to the notice, and

(b) must describe the general nature of the circumstances or allegations constituting the relevant criminal activity, and

(c) must set out the general purpose of the investigation.

...

(6) In exercising its principal functions, the Management Committee shall give high priority to matters relating to illegal drug trafficking, as far as practicable."

1. The particular limitation relied on by the appellants, found in s 25(2), is the need for the Management Committee to be satisfied that ordinary police methods of investigation are unlikely to be effective, before referring a matter to the Commission. By implication, the appellants submitted, the referral must effectively terminate once that condition is fulfilled, which can be no later than the laying of criminal charges. The disparity in language found in s 25(2) and the sub-paragraphs of the definition of "relevant offence" was not addressed. This submission is addressed at [121]-[122] below.

1. The Management Committee is authorised to obtain assistance from the Commissioner of Police:

"27A Police task forces to assist Commission

(1) The Management Committee may make arrangements with the Commissioner of Police for a police task force to assist the Commission to carry out an investigation into matters relating to a relevant criminal activity.

(2) In assisting the Commission to carry out such an investigation, the police task force is (subject to subsection (3)) under the control and direction of the Commissioner of Police.

(3) The Management Committee may give directions and furnish guidelines to the Commission and the Commissioner of Police for the purpose of co-ordinating such an investigation, and the Commission and the Commissioner shall comply with any such directions and guidelines."

1. In addition there is provision for the Commission to employ staff under the Public Sector Employment and Management Act 2002 (NSW), engage persons as consultants, arrange for the use of any staff of a Government department and arrange for "police officers ... to be made available (by way of secondment or otherwise) to perform services for the Commission": s 32. A police officer performing services for the Commission retains his or her rank, seniority and remuneration as a police officer "and may continue to act as a constable": s 32(6). It appears from the heading to the section that all these people are to be considered "staff of the Commission", that term not being otherwise defined.

1. It appeared that the officers involved in investigating the activities of the appellants were made available to the Commission pursuant to s 32, rather than as part of a police task force established under s 27A. There are number of provisions relating to confidentiality or secrecy. Thus, s 29 provides:

"29 Secrecy

(1) This section applies to:

(a) a member of the Commission, and

(b) a member of the staff of the Commission, and

(c) a member of a police task force assisting the Commission in accordance with an arrangement under section 27A, and

(d) a person to whom information is given either by the Commission or by a person referred to in paragraph (a), (b) or (c) on the understanding that the information is confidential.

(2) A person to whom this section applies who, either directly or indirectly, except for the purposes of this Act or otherwise in connection with the exercise of the person's functions under this Act, and either while the person is or after the person ceases to be a person to whom this section applies:

(a) makes a record of any information, or

(b) divulges or communicates to any person any information,

being information acquired by the person by reason of, or in the course of, the exercise of functions under this Act, is guilty of an offence punishable, on conviction, by a fine not exceeding 50 penalty units or imprisonment for a period not exceeding one year, or both.

(3) A person to whom this section applies shall not be required to produce in any court any document that has come into the person's custody or control in the course of, or by reason of, the exercise of functions under this Act, or to divulge or communicate to a court a matter or thing that has come to the person's notice in the exercise of functions under this Act, except where the Commission, or a member in the member's official capacity, is a party to the relevant proceedings or it is necessary to do so:

(a) for the purpose of carrying into effect the provisions of this Act, or

(b) for the purposes of a prosecution instituted as a result of an investigation conducted by the Commission in the exercise of its functions.

(4) In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to."

1. The first specific power engaged in the present case was the power of the Commission to summon a person to appear before it to give evidence: s 16(1). A person served with a summons is required to appear as a witness at a hearing before the Commission: s 18(1). Each of the appellants was summoned and appeared. On the first day of the appeal no issue was raised as to this stage of the investigative process. On the second day, officers of the Commission were cross-examined with respect to the fulfilment of the procedural steps initiating the investigation.

1. The conduct of a hearing by the Commission is provided for in s 13(1)-(5). A witness is not entitled to refuse to answer questions on the ground that the answer may incriminate or tend to incriminate the witness: s 18B(1). However, so long as objection is taken the answer is "not ... admissible in evidence against the person in any civil or criminal proceedings": s 18B(1), (2) and (3)(b). Again, no issue arose in respect of this step in the process: each of the appellants was warned of the obligation to answer questions and took an objection in an appropriate form. Accordingly, the answers were subject to what is commonly described as "use immunity". This label is convenient, but its meaning should not be misunderstood: it does not mean that the answers cannot be used by the Commission, but only that they cannot be proffered in evidence against the person in (relevantly) criminal proceedings. Thus, if a proper objection is taken, the function of the Commission to assemble admissible evidence and furnish it to the Director of Public Prosecutions would arguably not be engaged in respect of that material: s 6(1)(b) and (2) and [127] below.

1. The aspect of the process which was central to the appellants' argument in respect of ground 1 was the power, and in some circumstances the obligation, to direct that evidence not be published. It is desirable to set out in full the relevant provisions of s 13 dealing with the powers of the Commission in this regard and the circumstances in which publication may nevertheless occur:

"13 Hearings

...

(9) The Commission may direct that:

(a) any evidence given before it,

(b) the contents of any document, or a description of any thing, produced to the Commission or seized pursuant to a search warrant issued under section 11,

(c) any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d) the fact that any person has given or may be about to give evidence at a hearing,

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies, and the Commission shall give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(10) Where:

(a) a person has been charged with an offence before a court of the State, and

(b) the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission, being evidence in relation to which the Commission has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission shall make the evidence available to the court.

(11) Where:

(a) the Commission makes evidence available to a court in accordance with subsection (10), and

(b) the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person."

1. The operation of s 13(9) was the primary basis for the complaint by the appellants that the records of their examinations were illegally or unlawfully released. The provision confers power to direct that certain material "shall not be published." The last limb of s 13(9) obliges the Commission to give "such a direction" in two circumstances. The first involves the possibility of prejudice to the safety or reputation of a person. Little attention was paid to that limb in the present case, there being no suggestion that it was engaged. However, in seeking to identify the scope and purpose of the provision, these words should not be disregarded. Such a ruling might be required, for example, to protect the identity of a police informer, an established head of public interest immunity from disclosure.

1. The second limb, on which emphasis was placed, was the possibility of prejudice to the fair trial of a person. Three aspects were not in dispute. It was accepted that the low threshold generally associated with the word "might" applied to the question of prejudice to a fair trial, and not merely to prejudice to the safety or reputation of a person. Further, it was accepted that such prejudice might be anticipated whether or not a person had been charged with an offence. Finally, it was accepted that the Commission was obliged to give a direction which would have the effect of removing the relevant risk of prejudice to the fair trial of a person, where such a possibility arose.

1. There were two kinds of direction envisaged by the provision, namely an absolute non-publication direction and, in the alternative, one which specified that publication might be made only in a particular manner and to specified persons. Accepting that the obligation to make a direction protective of a fair trial has arisen, it does not follow that all forms of publication or dissemination of the material must be prohibited: cf SD v Crime Commission at [29]. That point was important in the present case: there was no suggestion that the contents of the interviews might be published in the media, with the potential to prejudice the appellants in the eyes of prospective jurors. Rather, the issue related solely to dissemination by the Crime Commission itself of the transcripts of the interviews to the Director of Public Prosecutions. On one view, s 13(9) was not directed to such dissemination. Ordinarily, non-publication orders are not addressed to the body making them, but to the third parties who may come into possession of confidential information. Other provisions noted above, including s 29, are directed to the maintenance of secrecy within the Commission. On this view, a direction under s 13(9) limits the use which can be made of disseminated material, rather than limiting dissemination by the Commission itself. The submissions, however, did not focus on that distinction.

1. A person summonsed by the Commission, and required to answer questions will know about, and may well be in a position to challenge, the exercise of the power if it were thought to be abusive. That is not necessarily true in respect of the publication of material obtained during a hearing. Indeed, it may be inferred from the exchanges at the pre-trial hearing and even the submissions in this Court that the appellants did not know what direction or directions had been given in respect of non-publication of the transcript of their examinations. Nor, until the transcripts were put in evidence in this Court, was the Court aware of the terms of the original direction, although the evidence called by the Director indicated that the Commissioner had given approval for the release of the transcripts to the Director. The Director's concession that the Commissioner could not validly disseminate material to any person not part of the Commission avoided the need to consider the true scope and operation of s 13(9). Thus, the issues raised by the appeal have come to be addressed on a legal assumption which might warrant further inquiry in another case.

1. Two further aspects of the legislative regime should be noted. First, there is nothing in the NSW Crime Commission Act which expressly states that an investigation cannot proceed once criminal charges have been laid, whether against a person proposed to be examined by the Commission, or another person. Nevertheless, examining a person against whom a charge has been laid in relation to matters closely related to that charge might be considered oppressive and an abuse of power.

1. Secondly, it was accepted that neither s 18B, nor any other provision of the NSWCrime Commission Act, provided what is commonly described as "derivative use immunity", being immunity from having tendered in evidence against the person in a criminal trial material which was not information obtained under compulsion, but obtained as a result of information obtained under compulsion. In other words, where answers given under compulsion lead to the issue of a search warrant, execution of which revealed evidence incriminating the person examined, although his answers could not be used in a criminal proceeding, the product of the search could be.

1. The objects and purposes of the Act, understood in the light of the functions of the Crime Commission and the powers conferred on it, demonstrate an expectation that an investigation by the Commission may lead to the acquisition of evidence which can be used in criminal proceedings. That evidence may result from the adoption of procedures which would be unlawful under the general law. Accordingly, the mere fact that information has been obtained, which would not have been available under general police powers of investigation and that the information has been passed on to a prosecutor, does not mean that a subsequent trial will be unfair.

(e) Commonwealth legislation

1. Similar legislation to the NSW Crime Commission Act has existed for some years in federal jurisdiction. The legislation, originally the National Crime Authority Act 1984 (Cth), is now the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). The structure and language of the ACC Act vary in some respects from the NSWCrime Commission Act but, relevantly for the argument based on s 13(9), the appellants relied on cases concerned with s 25A(9) of the ACC Act, which was in substantially similar terms.

(f) authorities

1. The proper construction of the NSW Crime Commission Act depends in part upon general law principles governing criminal investigation and trials. The cases reveal how statutory conferral of additional powers has been reconciled with the essential requirements of a fair trial in a variety of contexts.

1. The broad approach to questions of construction relied on by the appellants should be accepted. It is amply supported by the authorities. More specific reference will be made to those cases relevant to specific issues below, but it is convenient to note two authorities at this stage. First, in Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 the High Court held that it would be a contempt for a Royal Commission to compel an accused person to answer questions in relation to an offence with which he stood charged in pending criminal proceedings. Accordingly, the proposed interrogation, although to be conducted in private, was restrained. Secondly, in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; 72 NSWLR 456 this Court held that a statutory power to require a person to provide information or answer questions, or to produce any record or document, did not extend to a defendant in pending criminal proceedings: at [182] (Spigelman CJ, Hidden and Latham JJ agreeing).

1. Of the authorities relied upon, none was directed to the question raised by ground 1, namely whether the disclosure of information to the prosecutor could lead to a miscarriage of justice at a criminal trial. One category of cases concerned a pre-emptive injunction directed to a commission with respect to a proposed hearing before it. Injunctive relief was sought based on an alleged tendency for the investigation to interfere with, or otherwise prejudice, a forthcoming criminal trial. The operation of a provision such as s 25A(9) of the ACC Act (or s 13(9) of the State Act) may be indirectly relevant in such proceedings because it provides a mechanism by which a commission could prevent the results of its investigations contaminating a criminal trial. Thus, the closest the authorities approached the present case was in expressions of opinion as to the circumstances in which there might be prejudice to a fair trial, sufficient to require a non-publication order to be made by a commission.

1. A second category of cases concerned applications for stays of criminal trials, on the basis of an apprehension of prejudice to a fair trial resulting from the manner in which a particular investigation had been conducted. These cases are of closer relevance because they considered the effects of certain conduct on the part of a commission in respect of a proposed criminal trial; nevertheless, the issues raised are not identical with those which arise in the present case in which it is necessary to ask whether there has been a substantial miscarriage of justice as a result of those events, in the light of an actual criminal trial which has been completed.

1. Hammond v The Commonwealth concerned an examination to being conducted at a Royal Commission. It was accepted that the subject matter of the examination would be the person's involvement in criminal conduct for which he was about to stand trial. It was also accepted that the interview would be conducted in private. What was less clear was the extent to which the Court assumed that a transcript would be taken, but would not be disclosed by the Commissioner, prior to completion of the trial.

1. Hammond involved an inquiry into meat exports being conducted by Woodward J under the Royal Commissions Act 1902 (Cth). In September 1981 commissions were issued by the Commonwealth and Victorian governments to the one Commissioner. On 19 October 1981 an information was laid against the plaintiff, Mr Hammond, charging a conspiracy with respect to a prohibited export. On 23 April 1982 he was committed for trial although, by 4 August 1982 when the matter came before the High Court, no date had been fixed: 152 CLR at 193. In June 1982 the Commissioner heard evidence with respect to the alleged conspiracy for which the plaintiff was then awaiting trial and proposed to call the plaintiff himself. The Commissioner directed that the further evidence be taken in confidential session: at 194. When the plaintiff was called to give evidence, he refused to answer questions, although directed to do so. His refusal became the subject of a referral so that consideration could be given to bringing proceedings against him under the Royal Commissions Act. Before he could be examined further, proceedings in the original jurisdiction of the High Court sought an injunction restraining the continuation of the Commission hearing in respect of his examination. The Court unanimously granted the injunction. Gibbs CJ (with whom Mason and Murphy JJ agreed) noted at 197:

"It was common ground that if the plaintiff were again examined at the inquiry he would be bound to answer questions designed to establish that he committed the offence with which he is charged, and that his objection on the ground that his answers might incriminate him would not constitute a defence to a prosecution for failing to answer the questions."

1. Although the legislation contained provisions which appeared to have that effect, the Court was by no means satisfied that they would apply in such a case. Brennan J stated at 203:

"An accused person may not be deprived of his immunity from interrogation by the exercise of the prerogative power to appoint a Commission of Inquiry and Report. Whether the Parliament could deprive him of that immunity when he stands charged with an offence against a law of the Commonwealth is a question which need not now be determined, for it is not to be thought that Parliament, in arming a Commissioner with the powers to be found in the respective Acts, intended that the power might be exercised to deny a freedom so treasured by tradition and so central to the judicial administration of criminal justice."

1. Despite the last remark, it appears that the whole Court accepted what was described by Gibbs CJ as "common ground". On that basis, the Chief Justice concluded at 198:

"Once it is accepted that the plaintiff will be bound, on pain of punishment, to answer questions designed to establish that he is guilty of the offence with which he is charged, it seems to me inescapably to follow, in the circumstances of this case, that there is a real risk that the administration of justice will be interfered with. It is clear that the questions will be put and pressed. It is true that the examination will take place in private, and that the answers may not be used at the criminal trial. Nevertheless, the fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence."

1. Deane J considered that neither the Parliament nor the executive government of the Commonwealth or a State "is competent to prevent or prejudice the judicial exercise by a court of part of the judicial power of the Commonwealth by the type of interference with the due administration of justice in a particular case which would ordinarily constitute contempt of court": at 206. Deane J would have gone further than other members of the Court and would have restrained the Commissioner from reporting to the governments his findings with respect to the plaintiff's involvement in the relevant events until the criminal proceedings against the plaintiff had been concluded: at 208.

1. There is a degree of tension in the reasoning between the willingness to accept the point of statutory construction, namely that the authority of the Commission went so far as to permit it to compel answers from the plaintiff while standing charged with the offence, and the holding that the exercise of the power would constitute a contempt of court. The same tension has arisen in other cases where the power of a statutory authority to compel incriminating answers to questions has been reassessed within the relevant statutory context. There was no challenge to the constitutional validity of a law which might have authorised that which would otherwise be a contempt of court, possibly because both the statutory scheme for investigation and the offences laid against the appellants arose under State and not Commonwealth law.

1. There are three significant points of distinction between the present case and the circumstances in Hammond. First, neither the two interviews with Mr Jason Lee nor that with Mr Seong Won Lee were directed to the subject matter of the charges already laid. Secondly, Hammond was concerned with intervention to prevent interference with the administration of criminal justice, rather than the consequences of the interfering conduct, once it had occurred. Thirdly, the statutory regimes differed in significant respects.

1. The first point of distinction is significant; the fact that Mr Hammond was to be questioned directly about his conduct which was already the subject of a criminal charge (though the questioning may have had a broader purpose - not explored - than determining his guilt) was central to the Court's reasoning.

1. The second point of distinction should not be overstated. Although the relief sought in this case depends upon an additional consideration, the assessment of whether, viewed retrospectively, there has been a miscarriage of justice depends on the nature and extent of any impropriety in the pre-trial investigative process.

1. The third point of distinction requires an assessment of the investigative scheme under the NSWCrime Commission Act, to which it will be necessary to return.

1. Hammond was quickly followed in the High Court by Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281. Since Hammond, the Royal Commissions Act had been amended to include s 6A(2) which expressly provided that a person was not entitled to refuse or fail to answer a question on the ground of tendency to incriminate. The effect of that section, and its constitutional validity, were in issue, the latter picking up the doubts expressed by Deane J in Hammond as to the constitutionality of such a provision. (Deane J did not sit in Sorby.) The Court unanimously held that s 6A was effective according to its terms and was a valid law of the Commonwealth Parliament. Gibbs CJ stated that the privilege against self-incrimination was not protected by the Constitution - at 298 - and concluded at 299:

"There is no reason to doubt the validity of the application of such provisions to courts exercising federal judicial power. Similarly, it is no necessary impairment of federal judicial power that a person who may subsequently come to be tried has been compulsorily interrogated before the trial. Hammond ... is distinguishable. That was a case in which the plaintiff, who was called to give evidence before a Royal Commission, was awaiting trial for a criminal offence, and there was a real possibility that if he was required to answer incriminating questions the administration of justice would be interfered with."

1. In the joint reasons of Mason, Wilson and Dawson JJ, emphasis was also placed on the fact that there had been a "pending criminal charge" in Hammond. The submissions before the Court necessarily involved a further step. Their Honours stated at 306:

"However, the next step in the plaintiffs' argument is to say that s 6A effects an impermissible interference with the administration of justice because a witness under examination at the Commission who, unlike the witness in Hammond, has not been charged can be compelled by the Commissioner to answer questions relating to an offence in respect of which a decision has already been made to charge him."

1. The plaintiffs' arguments as to the invalidity of s 6A were rejected, on the basis that there was no constitutional protection for the privilege against self-incrimination. Further, the joint reasons concluded that "the possibility, or even the strong probability, that a witness called to testify before a Royal Commission will be charged with an offence provides an unlikely basis for a finding of contempt against the Commission in the event that the witness is questioned about matters which are relevant to the offence": at 307. Importantly, s 6A(3) provided that the withdrawal of the privilege did not apply "where the offence in respect of which the production of a document ... or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of". The joint reasons nevertheless concluded that s 6A(3) "would not preclude a court from restraining the Commissioner from examining a witness as to his [c]ommission of an offence if in the particular circumstances of the case that examination amounts to a contempt": at 307-308.

1. In Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 ("ACC v OK") an issue arose as to the proper construction of provisions of the ACC Act which bear close analogy with provisions in the NSWCrime Commission Act. As the majority, Emmett and Jacobson JJ, explained, the appeal was "concerned with the question of whether an examiner of the Australian Crime Commission ... may ask, of a person summoned to appear before the examiner, questions that relate directly to matters that are the subject of criminal charges laid against that person in a State criminal court": at [65]. Having noted the principles established in Hammond, the joint reasons stated at [107]:

"Under the Commission Act generally, and s 25A in particular, the risk of prejudice to a fair trial is to be managed by confining the persons to whom answers given by a witness can be disclosed, not by confining the questions that might be put to the witness. The Commission Act provides its own statutory safeguards to avoid risk to the fair trial of such a charge. On its true construction, the Commission Act permits an examination to continue on a subject matter directly related to a pending charge so long as the protective prohibitions contemplated by s 25A(3) and (9) have been put in place. Such principle as might relevantly be drawn from Hammond's Case is displaced by the express provisions of the Commission Act."

1. Section 25A of the ACC Act was the comparable provision to s 13 of the NSWCrime Commission Act. Section 25A(3) was the equivalent of s 13(5), which required that a hearing be held in private. Section 25A(9) was the equivalent provision to s 13(9) and involved a similar obligation to give a non-publication order where the failure to do so might prejudice a fair trial. Emmett and Jacobson JJ held that various powers of dissemination contained within the ACC Act were to be read subject to the "protective prohibition in s 25A(9)": [108]. Their Honours continued at [109]:

"The objects of the Commission Act could be seriously impaired if its investigations had to stop for an indeterminate period because charges had been laid. The public interest requires the investigation of a federally relevant criminal activity to continue. The right to a fair trial will not be compromised merely by the asking of questions of an accused person in circumstances where appropriate confidentiality is ensured. The public interest in the administration of justice, in particular to the right to a fair trial, is preserved by the statutory safeguards referred to in [the preceding paragraph - [108?]]. In this way the legislation achieves a balance between the public interest in the investigation of federally related criminal activity and the public interest in the right of an accused person to a fair trial."

1. The potential difficulty with counts 6 and 7 arose during the closing address by Mr Sutherland SC. He characterised the Crown's case as being that the items in the laundry "were jointly possessed by the father and the son". The following exchange then occurred in the presence of the jury:

"HIS HONOUR: The Crown didn't put joint possession. Individual possession. Both possessed.

SUTHERLAND: Sorry, your Honour.

HIS HONOUR: Not joint, both possessed.

SUTHERLAND: Each possessed as opposed to joint possession.

HIS HONOUR: Yes.

SUTHERLAND: I understand the distinction your Honour brings."

1. Mr Sutherland SC then continued with his address characterising the Crown case as "Mr Jason Lee possessed the items found out in the common area [ie the laundry]". He then addressed the Crown case on the items found in the main bedroom before the jury retired for lunch. In the absence of the jury the following exchange occurred about the Crown case:

"CROWN PROSECUTOR: Your Honour, it is the Crown case that is joint possession of the items. I am not sure I understand the possibility of individual independent possession in the circumstance.

HIS HONOUR: How do you explain Count 7? You see, it has to be individual possession in Count 7.

HIS HONOUR: It has to be individual possession for there to be consent.

SUTHERLAND: I ignored it for the moment for Seong Lee, but I had always understood the Crown to say it was joint possession against me outside [the main bedroom], that's why I went the way I did. I haven't tried to resolve Count 7.

CROWN PROSECUTOR: Count 7 is the alternative count which relates to if the jury are not satisfied of joint possession.

HIS HONOUR: If they are not satisfied of joint possession, they can't be satisfied that Mr Jason Lee was in possession, so I think it has to be individual.

CROWN PROSECUTOR: They don't have to be satisfied that he possessed it to the exclusion, I thought it was for count 7.

HIS HONOUR: They do.

CROWN PROSECUTOR: In relation to count 7, has to be satisfied he knew it was there.

HIS HONOUR: No. Do Young Lee [ie Jason Lee] has to possess it.

CROWN PROSECUTOR: Certainly that Do Young has to possess it. But for Count 7 they don't have to be satisfied that Seong -

HIS HONOUR: No." (emphasis added)

1. Mr Sutherland SC then stated that "at this stage of the trial we have got some question mark about what the Crown case is" and the following exchange took place:

"HIS HONOUR: The Crown case wasn't opened on joint possession, it was opened on the basis that each individual had possession. And if I can continue, it's on that basis that I have assumed the indictment was so framed, so the jury could find on the indictment that Jason Lee was guilty of count 1, also find that Seong Lee was not guilty. Then the jury would go through the process of determining the alternative count, and that's the way in which I understood the case was brought.

If you are talking about joint possession, that means the jury have to find they both possessed, which causes a problem in relation to the alternative count. I have worked on the assumption that the Crown case is that they each possessed the drug, not jointly, but they each possessed the drug, and that makes the indictment workable.

...

HIS HONOUR: It wasn't opened on the basis they jointly possessed. It was opened on the basis each person possessed, having regard to certain inferences the jury can draw on the evidence.

SUTHERLAND: Which is why I shifted to say to the jury what fell from your Honour. I don't really want to enter the debate any further at this stage.

HIS HONOUR: That's the way in which I approach it.

CROWN PROSECUTOR: I don't wish to get involved in an argument as to the precise meaning of 'joint'. The way that your Honour has put it is the way I put it to your Honour and to the jury.

HIS HONOUR: That's right, and that's the way in which I proceeded. The words 'joint possession', the words 'drugs, firearms' are not mentioned and I proceeded on that basis. "

CROWN PROSECUTOR: It may be a more semantic, from what I understand, it's a semantic difference, whether it has substance -

HIS HONOUR: ... [I]t's only a semantic difference, I am not going to use the word 'joint'."

1. After this exchange concluded Mr Sutherland SC then addressed the jury on count 6 and in particular whether the Crown had demonstrated "beyond reasonable doubt that [Mr Jason Lee] was in possession of what was outside that bathroom [ie in the laundry]".

1. The exchanges that I have extracted above reveal that the trial judge was troubled by the interaction between counts 6 and 7. In particular his Honour appreciated that a Crown case on count 6 which (only) alleged joint possession "causes a problem in relation to the alternative count [7]", namely that identified in [284] above. Although the Crown Prosecutor commenced the exchange by stating that the Crown case was a case of joint possession, implicit in his explanation of count 7 to the trial judge was that there was an alternative basis for count 6 at least as against Mr Jason Lee, namely one which contemplated him and not Mr Seong Won Lee being in possession. This would enable count 7 to then arise against Mr Seong Won Lee. It is regrettable that this was not put to the judge in clearer terms.

1. The trial judge stated that he would not allow a Crown case of joint possession to go forward but instead would only allow a case of individual possession, although his Honour accepted that it might be a "semantic difference". As I have explained it was not possible for both Mr Jason Lee and Mr Seong Won Lee to be in possession of the same item unless they were jointly in possession. However only Mr Jason Lee was found guilty of count 6 and ultimately the question of the sustainability of that verdict is not whether there was any confusion or uncertainty in the trial judge's mind but instead whether there was any relevant error in the instructions given to the jury so far as he was concerned.

1. I have described the structure of the summing up in [274] when dealing with ground 4 of Mr Jason Lee's appeal. In directing the jury in relation to count 6 the trial judge stated:

"Dealing with the first matter regarding possession. The Crown must prove that each accused intentionally had the substance in his physical custody or control to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence. The alleged offence is the supply of the drugs contained in count six. The Crown must prove the accused intentionally had the substance in some place [to] which either he alone or together with some other person acting jointly with him in committing the offence had access and might go to get physical custody or control of the substance.

So the Crown must negate possession on the part of any other person. Where there is a possibility that a person or persons other than the accused had possession of the drugs in question, other than those jointly acting with the accused, the Crown must prove that the accused had possession to the exclusion of that other person or persons. To put it another way, the Crown must rule out the possibility that the prohibited drug was in the possession of a person, not being either of the accused, and who had access to the apartment. Now I remind you of the following evidence regarding access to the apartment[.]" (emphasis added)

1. Later in addressing count 7 the trial judge told the jury:

"Now in order to place this alternative count into context I remind you that Mr Crown, in his opening address to you, submitted that if you are not satisfied that Seong Won Lee possessed the prohibited drug contained in the laundry, but were satisfied beyond a reasonable doubt that Jason Lee possessed the drug, then the Crown had an alternative position regarding Seong Won Lee."

1. Subject to one matter addressed below at [298] concerning the emphasised portion of [291], the instructions his Honour gave to the jury in relation to count 6 properly reflected the Crown case and conveyed the essential aspects of possession. The form of the direction emphasised the need for exclusivity on the part of each accused except for those who were "acting jointly with [each accused] in committing the offence". This encompassed each accused if they were in joint possession, a scenario the jury rejected. Otherwise the direction enabled the jury to find either accused in possession. As I have explained, at least so far as Mr Jason Lee was concerned that was consistent with the Crown case from its opening. There is room for argument about whether a case of sole possession by Mr Seong Won Lee or possession with others was contemplated by the Crown case on count 6 but in light of his acquittal on that charge it is unnecessary to consider this further.

1. Mr Jason Lee's principal complaint on this count is that the trial judge directed the jury on a basis that was wider than the Crown case as opened and closed in that the direction included a case of possession by Mr Jason Lee alone or by him and persons acting jointly with him whereas the Crown's case was only one of joint possession with Mr Seong Won Lee. It follows from the above that I reject the premise of that complaint. The Crown case on count 6 was not confined to only alleging joint possession on the part of Mr Jason Lee. Further there was no denial of procedural fairness to Mr Jason Lee in putting the case to the jury in the terms the trial judge did. It is the case that, during the exchange noted in [286] above, Senior Counsel for Mr Jason Lee stated that he had understood the Crown case on count 6 as only being a case of joint possession. However after that exchange he was at least aware that a case of individual possession was put by the Crown. He addressed the jury on that basis.

1. It was also submitted that that part of the direction in [291] which allowed for a finding of guilt on Mr Jason Lee's part if the jury were satisfied that "either he alone or together with some other person acting jointly with him in committing the offence had access and might go to get physical custody or control of the substance" was erroneous. In particular it was submitted that there was no evidence of a joint criminal enterprise between Mr Jason Lee and some other person but instead the Crown case was that Mr Jason Lee and Mr Seong Won Lee were in joint possession of the items in the laundry.

1. This submission is alluding to a distinction between a case in which two or more persons are both guilty of supply based on them jointly possessing the same drugs and a case in which two or more persons are guilty of supply because one of them possesses the drug and the other assists or facilitates their possession. However, in this context the reference to someone who was "acting jointly with him in committing the offence" in the directions for count 6 set out above was only a reference to joint possession.

1. The trial judge told the jury that for each accused to be guilty of supply they each had to have custody or control exclusive of others "except [anyone who was] acting jointly with him in committing the alleged offence". Thus that exception could only be invoked if that other person also had some form of custody and control over the drugs that could not be excluded by the relevant accused and if he or she was acting jointly with the accused. In that event that other person would be a joint possessor. Hence the trial judge left count 6 to the jury in terms of either sole possession by Mr Jason Lee or joint possession with Mr Seong Won Lee (or others). As I have explained that was consistent with how the Crown conducted the case.

1. A related submission made on behalf of Mr Jason Lee in respect of this ground of appeal concerned the emphasised part of the direction in [291], namely the statement that "the Crown must rule out the possibility that the prohibited drug was in the possession of a person, not being either of the accused, and who had access to the apartment" (emphasis added). It was submitted on his behalf that:

"... in order for [Jason Lee] to be convicted of this offence [count 6], and Seong Lee to be acquitted of this offence, the Crown had to eliminate the possibility that Seong Lee (or other persons who may have had access to the laundry) was not individually or with others collectively in possession of the substance, to the exclusion of [Jason Lee]. The jury were not directed to this effect." (emphasis added)

1. This submission overlooks the directions that preceded the emphasised part of the direction in [291]. They made it clear that the jury had to be satisfied that an individual accused had to have physical custody or control to the exclusion of others, except anyone who was acting with him in committing the offence. This meant that before the jury could convict Mr Jason Lee of this offence they had to be satisfied beyond reasonable doubt that he could not be excluded from custody or control of the drugs in the laundry. The jury were clearly so satisfied.

1. Further the reference to the "exclusion of others" in the directions given to the jury clearly embraced the other accused. Thus the jury were told that the Crown had to prove that "each accused intentionally had the substance in his physical custody or control to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence" (emphasis added) and that the Crown had to prove that "the accused intentionally had the substance in some place [to] which either he alone or together with some other person acting jointly with him in committing the offence had access" (emphasis added) etc and might go to get physical custody or control of the substance. Given those directions it follows that the jury were clearly satisfied that Mr Jason Lee had physical custody or control of the drugs in the laundry to the exclusion of Mr Seong Won Lee.

1. It was also submitted that there was no evidence upon which Mr Jason Lee could be convicted of being in individual possession of the items in the laundry as at 7 December 2009. This contention is addressed in that part of Basten JA's judgment which addressed ground 3 of Mr Jason Lee's appeal. His submissions on ground 5 also repeated the complaint that the trial judge's directions did not advert to the critical time at which possession had to be proved namely 7 December 2009. I have already addressed that when dealing with ground 4 of his appeal. It has no substance. As I have stated, after the jury retired to consider its verdict it sought clarification of counts 6 and 7. In responding the trial judge specifically reminded the jury of the need to be satisfied that Mr Jason Lee "supplied or possessed the prohibited drug in the laundry as at 7 December [2009]".

1. I would grant leave, but reject ground 5 of Mr Jason Lee's appeal.

Ground 3 of Mr Jason Lee's appeal: unreasonable verdict on counts 5 and 8

1. For the reasons given by Basten JA I agree that leave to raise this ground should be refused.

Ground 3 of Mr Seong Won Lee's appeal : unreasonable verdict on counts 1, 2, 3 and 4

1. Ground 3 of Mr Seong Won Lee's appeal contends that his conviction on each of counts 1 to 4 "should be set aside on the ground that [they are] unreasonable, or cannot be supported, having regard to the evidence" (Criminal Appeal Act 1912, s 6(1)). The principles governing the Court's consideration of such a challenge are summarised in the judgment of Basten JA, which I adopt.

1. I will briefly summarise the evidence relevant to these counts. The police arrived at the unit to conduct their search at 2.30pm on 7 December 2009. The unit was locked and there was no-one home. With the services of a locksmith they entered the unit. The unit consists of two bedrooms. The so-called "main" bedroom of the unit was locked. The police search of the property took place over four to five hours and was recorded on video.

1. The four items the subject of counts 1 to 4, namely a submachine gun, a silencer, two firearm magazines and a "brass catcher", were all found in a blue "Swarovski" box. This box was located in the laundry cupboard. Also found in the Swarovski box was a mobile phone contract in Mr Seong Won Lee's name, a sex toy, a cigarette butt, an envelope that was between the lid of the box and the submachine gun and two blank A4 pages. One of the Detectives agreed that if the papers were placed on top of the weapons in the box the weapons could not be seen.

1. The weapons the subject of these counts were tested for DNA and fingerprints but neither was found. The Swarovski box and the phone contract were not tested for DNA but were tested for fingerprints. No finger prints were found on either. The envelope was not tested for DNA but was tested for fingerprints. Two identifiable prints were found neither of which belong to Mr Seong Won Lee. The blank A4 pages were not tested for DNA.

1. DNA testing of the cigarette butt revealed a profile originating from an unknown female. DNA testing of the sex toy revealed the presence of a mixture of DNA in respect of which there were at least three contributors, two male individuals and one female. Testing using the Y-filer profile identified Mr Seong Won Lee as the major contributor of the male DNA found on the sex toy. Y-filer testing targets the Y chromosome as passed from father to son. All relatives of the male relative cannot be excluded from having the same Y chromosome.

1. Also seized from the laundry were two sealed boxes each containing three cartons of "Q-Up" white powder, as well as a green "Q-Up" carton containing white powder. Neither Mr Seong Won Lee's fingerprints nor DNA was found on these items.

1. At some point during the execution of the search warrant Mr Seong Won Lee arrived at the unit. He told the police that he lived in the unit with his girlfriend. Mr Seong Won Lee stated that the smaller of the two bedrooms was his. He was placed under arrest.

1. It was an agreed fact that the owner of the unit was J & Lee Property Investment Group Pty Ltd. A certificate of title in that company's name was found in the cupboard in the main bedroom, bearing the date 14 October 2010. Mr Seong Won Lee was appointed a director of that company on 9 April 2008 and was still a director as at October 2010. He was appointed as the company secretary and remained in that position until at least 14 October 2010.

1. Count 1 charged Mr Seong Won Lee (and Mr Jason Lee) with possession of a prohibited firearm without a licence or permit contrary to s 7(1) of the Firearms Act 1996. There was no dispute that the submachine gun found in the laundry was a prohibited firearm and that Mr Seong Won Lee was not authorised by a licence or permit to possess it. The relevant definition of "possession" was found in s 4A which provided:

"4A Meaning of "possession" of a firearm - proof of possession

(1) Without restricting the meaning of the word possession, for the purposes of any proceedings under this Act, a firearm is taken to be in the possession of a person so long as it is in or on any premises owned, leased or occupied by, or in the care, control or management of, the person, unless the court is satisfied that:

(a) the firearm was placed in or on, or brought into or on to, the premises by or on behalf of a person who was lawfully authorised by or under this Act to possess the firearm, or

(b) the person did not know and could not reasonably be expected to have known that the firearm was in or on the premises, or

(c) on the evidence before it, the person was not in possession of the firearm.

(2) In this section, premises means any place, vehicle, vessel or aircraft."

1. Given that Mr Seong Won Lee admitted that he resided in and occupied the unit, it followed that the only real issue on count 1 was whether he discharged the onus of proof placed on him by demonstrating that, on the balance of possibilities, he did not know and could not reasonably have been expected to have known of the presence of a submachine gun in the box in the laundry of the unit.

1. Counts 2, 3 and 4 charged Mr Seong Won Lee with possession of the other three items, contrary to s 7(1) of the Weapons Prohibition Act 1988. Again the only relevant issue on these charges was whether the Crown could prove beyond reasonable doubt that he possessed the items. Section 4 of the Weapons Prohibition Act referred to "possession" in divergent terms, namely:

"possession of a prohibited weapon includes any case in which a person knowingly:

(a) has custody of the weapon, or

(b) has the weapon in the custody of another person, or

(c) has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person."

1. The trial judge directed the jury in terms consistent with this definition and that it was "necessary that the accused intentionally had control over the weapon". Presumably this latter direction was given to encompass that part of the expanded definition that requires that it be shown that the possessor "has custody" or "has" the weapon.

1. The Crown case on all these counts was strong. The weapons were found in a box in the laundry cupboard of a small unit where Mr Seong Won Lee resided. As the Crown noted it would be expected that a resident would access such a cupboard if "for no other reason [than] to do his washing". The box also contained a contract in his name and another item which produced a Y-filer profile matching his DNA profile. As submitted by the Crown, the jury was entitled to consider the improbability that some other person would have placed weapons in the common area of the apartment he resided in, as well as located personal documents and items belonging to him and put them in the same box as the weapons. The police also found in a bag in the laundry cupboard a gun-cleaning kit. If someone had planted the guns and the cleaning kit in the laundry without the knowledge of Mr Seong Won Lee then they would most likely have put them in the one container to lessen the likelihood that he would detect their presence.

1. Three matters were pointed to on behalf of Mr Seong Won Lee as raising a doubt as to his guilt.

1. First, he pointed to evidence indicating that other persons had access to the apartment. He referred to there being a mattress on the floor, the location of temporary bedding and the presence of a pair of shoes sighted on a shoe rack. He also referred to the contents of the locked main bedroom which included nine toothbrushes in the bathroom cupboard in the ensuite. Further, he pointed to the presence of women's clothing and a woman's handbag in the wardrobe of the locked bedroom.

1. Secondly, Mr Seong Won Lee relied upon the fingerprint and DNA testing of various items. It was said that this raised the possibility of other people having access to the laundry area where the guns were found. In particular, he referred to the fingerprints found on the envelope in the Swarovksi box and the presence of someone else's DNA on the cigarette butt and sex toy.

1. Third, Mr Seong Won Lee submitted that there was evidence that someone else had, at some point, possessed the Swarovski box. A "Swarovski crystal panther" and foam that may have been used to pack it were located in the locked main bedroom. The Crown relied on the link between the Swarovski box found in the laundry and the Swarovski crystal panther found in the bedroom in its case against Mr Jason Lee to demonstrate that Mr Jason Lee possessed the weapons found in the laundry (although he was acquitted of that count).

1. The submissions of Mr Seong Won Lee did not develop how these matters were said to rebut the Crown case. In any event with count 1 none of these points carry much weight. As I have explained, the onus was on Mr Seong Won Lee to prove on the balance of probabilities that he did not know and could not reasonably have been expected to know of the presence of a sub-machine gun in his own laundry. Even if it was accepted that the evidence established that other people had access to the unit including the laundry that does not establish a lack of actual or imputed knowledge on Mr Seong Won Lee's part unless it suggests that they planted a sub-machine gun without his knowledge and in circumstances where he could not have reasonably been expected to know that they had done so. The material pointed to on his behalf does not come even close to establishing that contention. Mr Seong Won Lee did not discharge the onus that was placed on him.

1. In relation to counts 2, 3 and 4 the starting point is that Mr Seong Won Lee resided in a unit which was not large, the firearms were easily located in a cardboard box in the laundry of that unit and the box containing the firearms also contained a contract bearing his name and a sex toy with his Y-filer DNA. These matters point strongly to the Crown demonstrating that he had knowledge of and control over the weapons. At its highest the material pointed to on behalf of Mr Seong Won Lee only suggested that other people may have accessed the unit including the laundry and at some point handled the envelope found with the box and possibly the box itself. These matters would only undermine the otherwise inescapable inference that Mr Seong Won Lee "knowingly" had the items in the laundry if they were capable of raising a reasonable possibility that the items were planted there without his knowledge or that control over the weapons was exercised by others. In my view they do not raise either possibility.

1. I am not satisfied that a reasonable doubt should be held as to the guilt of Mr Seong Won Lee on counts to 1 to 4.

1. I reject ground 3 of Mr Seong Won Lee's appeal.

Ground 4 of Mr Seong Won Lee's appeal: Unreasonable verdict on count 7

1. For the reasons given by Basten JA, I agree that this ground should be rejected.

Conclusion

1. I agree with the orders proposed by Basten JA.

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Amendments

16 May 2018 - Publication restriction removed - judgment republished

Decision last updated: 16 May 2018