Lee v The Queen; Lee v The Queen

[2013] HCATrans 314

[2013] HCATrans 314

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S101 of 2013

B e t w e e n -

DO YOUNG (AKA JASON) LEE

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S102 of 2013

B e t w e e n -

SEONG WON LEE

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 10.12 AM

Copyright in the High Court of Australia

___________________

MR M. THANGARAJ, SC:   Your Honours, I appear for Mr Jason Lee with my learned friend, MS G.A. BASHIR.  (instructed by Nyman Gibson Stewart)

MR T.A. GAME, SC:   If the Court pleases, I appear for the second of the named applicants with MR S.S. PARARAJASINGHAM.  (instructed by Nyman Gibson Stewart)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS J.E. DAVIDSON, for the respondent in each matter.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Game, are you leading off?

MR GAME:   Yes, your Honour.  Just in terms of – I suppose I could say we are back but the legislation here is the legislation of the kind considered in X7 and the provisions are pretty much ‑ ‑ ‑

FRENCH CJ:   X7 was about, of course, the scope of the statutory power. 

MR GAME:   Understood, your Honour.  Yes, but the analysis of say, section 13(9), would have been different if X7 had been handed down.  The decision in this case was on 3 April 2013 and X7 was on 26 June 2013.  Now, your Honours, if I could just give your Honours a little bit of sequence.  If you go to page 321 of the application book, my client, Seong Lee – top of page 321 - was arrested and charged with weapons and other offences.  Then he was questioned - paragraph 7 - in relation to Mr Pak of the washing powder.  Charges were contemplated in relation to the drugs offences but were not laid until 13 May.  Then, on 1 July, a solicitor sought the material - that is at the bottom of the page - wanting to know what they had to say in respect of the washing powder and what their defence was and it was the dissemination that followed that that was accepted to be unlawful or improper. 

Now, in terms of the position of what the prosecutor knew, there is a summary of that that can be seen at 312 in our co‑applicant’s submissions so that the – paragraph 9 – the solicitor had it, the first prosecutor had it and thought it was helpful to know what the defence was and - that is actually the second but the first made similar comments in court about it.  The second, who was cross‑examined on the appeal, said that he found it useful and “interesting” and “informative” and we have set that out at page 337 in our submissions in paragraph 4.  My solicitor put on an affidavit saying that he was aware of the fact that it was possessed but although he thought it was unlikely that the client would be called that, in effect, it closed the gate on the possibility of calling him.  If you go back to the Court of Criminal Appeal, how they dealt with it ‑ ‑ ‑

FRENCH CJ:   I am sorry.  Just that last statement you made - closed the gate on the possibility of calling ‑ ‑ ‑

MR GAME:   ‑ ‑ ‑ the client.

FRENCH CJ:   Where does that appear?

MR GAME:   I have just set that out at paragraph 5 in the reply.  I have in mind the observations made about the accusatorial process in X7 - particularly those – I bear in mind your Honour the Chief Justice’s observations about it but I was thinking also of those of Justices Hayne and Bell in relation to the accusatorial process and trial according to law.  When it comes to the Court’s dealing with this issue, the analysis ‑ ‑ ‑

BELL J:   I am sorry, can ‑ ‑ ‑

MR GAME:   Sorry, I am going too fast.

BELL J:   Yes, I think you are.  Can we just go back to the evidence that your client was effectively precluded from a decision to give evidence in light of the events that occurred.  Where do we find that?

MR GAME:   I have set that out in paragraph 5 in the reply. 

BELL J:   In the reply – would you just bear with me a moment?

MR GAME:   Yes, sorry, your Honour.  That affidavit was drafted with some care not to overstate the situation, your Honour.

BELL J:   Yes, so it was a possibility that became a foreclosed possibility.

MR GAME:   That is correct, your Honour.

BELL J:   Yes, all right.

MR GAME:   But in terms of the forensic position, the situation was that my solicitor was aware that the prosecution possessed the material at some stage during the trial – or they were aware of it, but it was not known until the Court of Appeal proceedings that the material had been unlawfully disseminated by the New South Wales Crime Commission.

FRENCH CJ:   That evidence that was given by the solicitor – where does that - does that surface anywhere in the Court of Appeal decision?

MR GAME:   It is not discussed, your Honour. 

FRENCH CJ:   Is it before the Court of Appeal?

MR GAME:   Yes, your Honour, and I made submissions about it.

FRENCH CJ:   Okay.

MR GAME:   So when you go to the Court of Criminal Appeal’s analysis - and it is Justice Basten’s judgment - I will not take your Honours through it but there is an analysis that really doubts the unlawfulness relating to section 13(9) and we have set that out.  There is no need to go to it.  It can be seen at paragraphs 54, 79 and 125.  When one comes to the actual final analysis, what one sees is an examination that really goes from page 220 through to 223 and we say that one sees at 157 the kind of question posed and 158 correctly, we would say, that an in‑depth analysis of, shall I say, what people thought about tactics and what they did or might not have done for similar reasons as in TKWJ that is not appropriate to go that further step and then say, well, we really would have called him and the prosecutor really found it very helpful. 

We say this is actually no different than a situation than if I was prosecuting a case and at morning tea I picked up the defence counsel’s brief, read his client’s proof of evidence and put it back on the Bar table and nothing happened but a CTV showed that is what had happened.  No one would ask was it very useful to me or did – what did the accused give evidence, or did the accused know about it.  At that point, the adversarial process has been turned on its head.

BELL J:   Does that carry with it that there can then be really no answer to an impropriety of this sort but that no fair trial can be held?

MR GAME:   That is right and so when you go to – I am not saying no fair trial can ever be held, you may be able to get a new prosecutor, you may be able to find a way of, as it were, quarantining all of those things but this trial miscarried at that point.  I have got a kind of argument about the processes that go on but when you get to paragraph 164 and the Court says:

It cannot be said [they] . . . lost a possibility of acquittal.

How on earth are you going to prove that in the context of what might be described as fair trial type of considerations?  When one looks at the line of cases which might be described as the Wilde, Cesan, Nudd kind of cases where your Honour the Chief Justice in Cesan, for example, talked about the imponderables, it is hopeless to actually go on and then examine how this actually brought about – the unfairness is in the possession of it and the further thing, the knowledge of it and, as it were, decisions having to be made about it ‑ ‑ ‑

BELL J:   The Court of Criminal Appeal considered it significant that senior counsel took no point, though aware of the fact that the material had been disseminated ‑ ‑ ‑

MR GAME:   When you say – he did not object but he did not know that it had been unlawfully disseminated and the line of cases - X7 had not really brought to the fore the actual critical nature of this process.  So he was not happy about it but he did not say “I want the trial stopped” but, as I say, it was not known until much later that it was unlawfully obtained, your Honour.

BELL J:   But the practical difficulty posed by the prosecution having access to the material was understood by him.

MR GAME:   Yes, but he tried to – whereas we see from my solicitor he tried to - he positioned himself – I mean, when I say positioned himself, he made decisions in his head based on the position.  I have to accept that there was not a full‑scale objection to the trial proceeding but the full circumstances were not known and what Mr Barr - the position of the prosecutor at trial which was a different prosecutor, was not known at all until his cross‑examination in the Court of Criminal Appeal.

BELL J:   What did that cross‑examination reveal?

MR GAME:   I just set out a bit of it at paragraph 4 on 337 and I took you to a paragraph where there is a little bit more detail but he found it interesting ‑ ‑ ‑

BELL J:   Quite dense, factually, Mr Game.

MR GAME:   I know, sorry, your Honour.

BELL J:   It will assist if you go a little slower so that one can keep in one’s head the facts relating to each matter.  So, now, what was the evidence that Mr Barr gave?

MR GAME:   We have summarised a relevant portion at page 337, paragraph 4.  It is drawn out a little bit more in the co‑applicant’s at 312, paragraph 9.  It is summarised at more detail line 36 at 312. 

FRENCH CJ:   It is not suggested that the transcripts were used in any way at trial but that they gave the prosecution some form of unfair forensic advantage because it enabled them to, as it were, speculate as, or infer lines of defence which might be run.

MR GAME:   It gave them insight into what the defence might or might not do and also ‑ ‑ ‑

BELL J:   Mr Barr considered that if your client gave evidence, he was entitled to cross‑examine on that material.  Is that right?  Is that the effect of that evidence or not?

MR GAME:   I am not absolutely sure that it goes that far, your Honour.  As I say, that summary at 312 is the best we have for the moment.

FRENCH CJ:   There is no suggestion of that kind in that paragraph, is there?

MR GAME:   No, no, that is understood.  What I would say is that there is the additional feature which is that because the defence – because my solicitor knows about it, that actually adds an extra aspect to it because ‑ ‑ ‑

BELL J:   You will need to explain that.

MR GAME:   The point about that is this, it seems counterintuitive but the fact that he knows about it means that he is now making decisions based on the fact that they have got it.  That is closing the door on his client giving evidence.  That is the point about that.  So it is not blissfully unaware going on with the case in the instance I gave you of reading the defendant’s proof of evidence and then putting it back on the Bar table.

Now, if one goes to the analysis of the Court – as I say, when you get to paragraph 164, “lost a possibility of acquittal”, we say, is not the test.  The test is in the fair trial process line of cases and that is where this should be positioned and should stand.  So when one comes to the reasons for rejection we see paragraph – first of all those three – the uses identified at 159 to 161, we say they really assume lawful possession and they are not to the point here when the use identified is the possession, knowledge and, as I say, forewarning of the defence case.

Incidentally, knowing what the defendant might say might actually mean no more to a prosecutor than “I do not need to bother going to do anything” – “I do not need to bother going and investigating some other line of” – use is knowledge, in a sense.  So then when one comes to paragraph 162 it says - the analogy is given is about the possession of inadmissible material.  In our submission, that is a completely inapposite analogy when there is no question about the lawfulness of the possession of the inadmissible material.  It is not to say that there might never be a case where possession would actually force a prosecutor to have to return a brief but that is not an apposite analogy. 

The second is the failure to take objection and I have dealt with that, I hope.  But the point is said against us that we have to establish, in the last line in 163, what is described as “practical unfairness”.  Now, as I say, going down that road, we submit, is completely inapposite in a situation like that and involves the Court in investigating the to‑and‑fros and turns and twists of what may or may not have been done.  If, for example, my solicitor had been able to swear that we were going to call him or it was more likely that we were going to call him, then we win the case then but we lose it if it was unlikely that it closed the gate.  It seems that that is very much against how a court should deal with questions of this kind.

BELL J:   Was this particular argument put before the Court of Criminal Appeal?

MR GAME:   Pretty much, yes.  I mean, when I say “pretty much”, I put the argument and my thoughts about it have not changed ‑ ‑ ‑

BELL J:   Directing attention to the evidence of the instructing solicitor that you have referred to in your reply - that was raised?

MR GAME:   Yes, your Honour, yes.  Now, then we get to the last paragraph, 164:

did not seek to establish any practical unfairness –

but the whole submission is the submission I am putting to you now as to what the problem was. 

FRENCH CJ:   It reduces to this, does it not?  You say that the release of the transcripts to the prosecutors irremediably compromised the accusatorial process in relation to this trial?

MR GAME:   That is right.

FRENCH CJ:   Independent of any actual practical effect and, secondly, you assert that there was a risk at the very least that it did have an effect because of the statement made by the solicitor in his affidavit and that that was not dealt with by the Court of Criminal Appeal.  Does it rise any higher than that?  I am not trying to trivialise it.

MR GAME:   It rises that high.  I hope that is high enough but I cannot put it – I mean, if I keep talking I am just going to elaborate on that. 

FRENCH CJ:   Saying the same thing.

MR GAME:   This is the heart of the situation as we see it in this case.  If the Court pleases.

FRENCH CJ:   Okay, Mr Game, thank you.  Yes, Mr Thangaraj.

MR THANGARAJ:   Your Honours, we adopt what Mr Game has said for our co‑accused.  If we could just add some further points.  Section 6(1) of the Criminal Appeal Act is a very important provision given it deals with conviction appeals and if I could quickly take your Honours to application book 176.  This is where Justice Basten dealt with the test and we say a new and impermissible test is being propounded. 

His Honour relied on what Justice Gageler said in Baini in relation to this miscarriage of justice aspect.  Of course, that came out of Victorian legislation and his Honour said at paragraph 30 that Justice Gageler said:

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” ‑ 

Correlated with that there became the practical unfairness test.

BELL J:   But did not Justice Basten go on, if one goes to application book 177 paragraph 34, to recognise that the provision is capable of attaching to a circumstance that occurred or did not occur in a trial, that something happened or did not happen.  I mean, in other words, a somewhat broader construction is given then if one takes paragraph 30 in isolation.

MR THANGARAJ:   Whether something happens or does not happen, your Honour, in a trial may still be an irregularity said to go to the result, said to go to the conviction whereas there are judgments in the Court of Criminal Appeal which have led to convictions being quashed, for example, in the days when the notice of judge alone form had to be filled in and filed the day before, the Court of Criminal Appeal quashed a conviction ‑ ‑ ‑

BELL J:   Well, indeed, but I do not understand anything that his Honour says in paragraph 34 to not admit of that.  Do you suggest ‑ ‑ ‑

MR THANGARAJ:   Your Honour, the way that his Honour dealt with this in the judgment imposed a test of practical unfairness, we say, but also this requirement to establish a causal connection.  Otherwise, paragraphs 29 and 30 have no relevance at all to this case.  It was the implementation of this requirement of practical unfairness and the irregularity having some connection with the conviction that we had some difficulties with because, for the reasons that Mr Game has espoused, that does not need to be proven or established on behalf of an applicant in a conviction appeal. 

We say, for those reasons, as we put in our written submissions, that it is inconsistent with authorities of this Court.  It certainly is the case that his Honour looked at and criticised us and said that we could not succeed in our appeal because we had failed to demonstrate a practical unfairness for reasons that we put in our written submissions and Mr Game has already highlighted.  We do not say that we need to establish ‑ ‑ ‑

BELL J:   One is ultimately looking at whether or not a substantial miscarriage of justice has actually occurred.  That does direct some consideration to the circumstances of the irregularity in this trial that was had. 

MR THANGARAJ:   The difference was that, as your Honour knows, in section 6(1) the test for the appellant is miscarriage of justice, the proviso is substantial miscarriage of justice, which has a different onus.  The way that his Honour has written the judgment there are a number of occasions when his Honour talks about a substantial miscarriage of justice which is not our – it is not for us to demonstrate as an appellant and that is why we talked about a conflation.

BELL J:   Yes, I understand, yes.

MR THANGARAJ:   A second point of importance, we say, is that this judgment says that there is no derivative use immunity or compulsory examinations in the New South Wales Crime Commission Act.  If that is correct…..important ramifications for, not only investigations, but dissemination of material.  We say that that is clearly not correct.  It is not the position that there is no derivative use immunity for a couple of reasons:  one, there is no express provision that there is and, secondly, the mandatory order that is required to be made under 13(9) is what means that there is a derivative use immunity.  The court said that we actually accepted that there was no derivative use immunity.  We did not accept that.  The Crown accepts we did not say that.  We put submissions on a number of occasions to explain.  So that is another important point that needs to be, with respect, determined.

FRENCH CJ:   Where do you say the derivative use immunity comes from?

MR THANGARAJ:   The Crown at 218 is one example ‑ ‑ ‑

FRENCH CJ:   Out of the statute, I think.

MR THANGARAJ:   Section 13(9) mandates the Commissioner to order ‑ ‑ ‑

FRENCH CJ:   “May direct that”.

MR THANGARAJ:   In circumstances where it might be an unfair trial.  The order was made in relation to my client and we say that that means that it cannot be disseminated outside and that is what provides derivative use immunity and, for example ‑ ‑ ‑

FRENCH CJ:   You mean as a practical consequence?

MR THANGARAJ:   Effectively, that is what it is.  For example, there is a specific provision that talks about dissemination to the Director’s office but that is only admissible evidence and it is certainly not the case that the transcript is admissible evidence.  So when there is a particular provision for dissemination in section 6 limiting dissemination to the DPP of admissible evidence, there is a provision under section 13(11) that the transcripts may be provided to the accused, but there is no equivalent provision about it being provided to the Director’s office.  There does seem to be a suggestion - that, we say, on the statutory construction point of view with those three provisions, means that there is a derivative use immunity and certainly, in relation to dissemination.

FRENCH CJ:   Derivative use immunity has to be linked, in your submission, does it not, to the notion that dissemination might prejudice the fair trial of a person?

MR THANGARAJ:   That is a part of it, your Honour, yes.

FRENCH CJ:   That must be the only basis, must it not, because that is the only basis upon which the Commissioner is required to give such a direction?  The only relevant basis, I should say.

MR THANGARAJ:  Yes.  There is an argument that derivative use immunity is a protection and unless it is expressly removed then there is ‑ a person under a compulsory examination is protected from that derivative use.  That is a question that perhaps may need to be decided but certainly we rely on the statute in the way that your Honour has just described.

BELL J:   The irregularity that you say constituted a miscarriage of justice in your client’s case seems to have come down to the unauthorised disclosure and the release of the compelled documents.  Now, with respect to the compelled documents, the Court of Criminal Appeal took into account that the execution of the search warrant, documents or copies of the same documents have been seized.  What do you say about that line of reasoning?

MR THANGARAJ:   The documents, the compelled documents, were the ones used to obtain the statements from the witnesses.  So the Crime Commission, we say, had done the wrong thing using those compelled documents.  Yes, it was by fluke that the search warrant uncovered basically the same material.

BELL J:   Whether it is a fluke or not, how do you make out your irregularity in relation to the compelled documents that then were used to obtain statements, given the Court of Criminal Appeal’s findings in relation to the seizure in the execution of the search warrant.

MR THANGARAJ:   Your Honour, with respect to the documents, we cannot put it much higher than the use - I think we have referred to it in our written submissions but we cannot put it much higher than the fact that it was compelled.  It was, we say, probably improperly shown to particular deponents of the relevant documents and the material was obtained.  That is really about the highest we can put it with respect to the documents.

BELL J:   The Crime Commission wrongly disclosed the contents of the interview with your client.

MR THANGARAJ:   Yes.

BELL J:   Now, there is a suggestion that the contents of that had no bearing on this trial?

MR THANGARAJ:   Your Honour, the timing of when my client was interviewed and the timing of when he was charged, with respect, is not the point.  In a moment, I will take your Honours to what the relevant prosecutor said about this.  Perhaps, maybe we could do that now, your Honour.  We will advance the point. 

Could I ask your Honours to go to appeal book 208.  This is what the first prosecutor said during the voir dire.  Both of the accused were examined at the Crime Commission and whilst that evidence is not admissible in these proceedings, I suppose it gives us a bit of an idea where they might be heading.  We are not in a position to lead that evidence. 

All I am saying, your Honour, is that because they were given the usual rider at the commencement of their evidence, when objection is taken, it cannot be used against them but there are things said there to the Commission which, as I say, give the Crown at least a possible scenario for where the defence might suggest that there is some innocent explanation about not only the money in the unit but they do not know anything about drugs.  We have to present our case in a way that we believe will rebut any explanation about both the money in the unit and the drugs.  The money, the drugs, the guns were inextricably linked.

BELL J:   Mr Thangaraj, I appreciate you are on top of this brief, but I am not.  Can you please explain how the contents of the compelled interview bore relevantly on any issue that was live at the trial of your client?

MR THANGARAJ:   Yes, your Honour.  This extract – when the Crown Prosecutor is talking about that evidence he is talking about our transcripts. 

BELL J:   I understand that, Mr Thangaraj.  The Crown Prosecutor may be speaking somewhat loosely.  Can you explain, by reference to the subject matter of the interview and the issues that were live at the trial of your client ‑ ‑ ‑

MR THANGARAJ:   Yes.  So, your Honour, the issues – the charges for my client included drugs and guns, a significant amount of ‑ ‑ ‑

BELL J:   Drugs and guns that were seized in the execution of the search warrant on 7 December or November. 

MR THANGARAJ:   During the search warrant, yes, your Honour.

BELL J:   All right, go on.

MR THANGARAJ:   A large amount of money was found at the premises at the same time.  A charge was laid in relation to the money which was severed.  However, the evidence of the money was permitted to be led in the trial on the basis that that significant amount of money was inextricably linked to the operation involving the guns and the drugs.

So the issue then became is there an innocent explanation for that money being in the location.  In the transcript of the Crime Commission examination, there were questions being asked about cash coming into the country, about money transfers.  So what the Crown – the benefit that ‑ ‑ ‑

BELL J:   But the questions were not directed to this sum of money?

MR THANGARAJ:   No, at that stage the warrant had not been executed ‑ ‑ ‑

BELL J:   Had not been found.

MR THANGARAJ:   Yes.  It was directed to the cash that had come in in the amount of $15 million.  So well in excess of $1 million found in the unit, so it was directed to all his money.  That is why, when he gave his evidence to explain the large amount of assets, cash, that he had, which the Crime Commission knew about and he was examined about that in the Crime Commission transcript, that is why the Crown Prosecutor, the first prosecutor, said it was helpful in the way that I have just taken your Honours to, and the trial prosecutor said that is why he said it was informative, it was helpful, et cetera. 

So that is why there was that connection between – and the usefulness.  We know that the Director specifically asked for the examination transcripts for the purpose of seeing what the defence position might be.  We know that that was an improper request, it has been conceded.  We know that the Crime Commission improperly provided those transcripts. 

We know that both of the prosecutors that were briefed in the matter found it helpful in the way because of the link between the questioning of the money and the explanation of there being an innocent reason as to why the money was in the – all of his money was in Australia.  So, whether it was in the apartment or in a bank account or bought in property really made no difference.  That was the benefit that they received.

Could I take your Honours to 314 of the application book, please?  Your Honours will see at line 11 how the prosecutor relied on the brief in relation to the:

in his closing address on “The drugs, the money, the guns…” . . . “you have the money in the bag there in the bag there . . . you have the money in the bed, and it just all fits together as being involved in a drug deal” ‑

Further on down the bottom, 19, 20, it is:

“…the combination of the drugs, money and a gun were strongly indicative of possession of drugs for the purposes of supply” –

That is why it was important and informative.  I will just maybe limit it to the words that the prosecutors said themselves, informative gives the Crown at least a possible scenario for where the defence might suggest that there is some innocent explanation not only about the money, and this is also important, your Honour, that it was not just about the money.  Even though he was not examined about the drugs, the same explanation – a similar explanation could be given and that is why the first prosecutor candidly said in his explanation, not only about the money but that they do not know anything about drugs.  On page 312 of the application book at line 27, Mr Barr, the second prosecutor:

gave evidence before the CCA that the essence of the Crown case was that the significant amount of money found in the locked room said to be applicant’s money was relied on along with the weapons “in support of the drug charges” . . . the question of the legitimacy of the money was in issue potentially in the trial –

et cetera.

BELL J:   Do you advance any case in the Court of Criminal Appeal along the lines of that relied on by Mr Game’s client respecting the forensic choices that might have been made?

MR THANGARAJ:   Not to the level that Mr Game’s solicitor put it but certainly in the abstract of, well, we know they have got it, it makes it difficult when we have got a particular course.  What are they going to do about it?  The usual – some of them are known and some of them would be unknown.  But certainly we had those difficulties.  Your Honour raised the question of senior counsel not asking effectively for a discharge.  If I could take your Honours to the application book, 215, where the court dealt with that issue to some extent, page 215, line 30.  Senior counsel:

filed an affidavit on the appeal explaining his understanding of the situation at the relevant times.  There is no suggestion that any step he took or did not take caused a miscarriage of justice –

et cetera.  There was no objection to the affidavit but the court stated that:

statements as to counsel’s beliefs are of doubtful relevance. 

The timing of this was that CB, Seller and McCarthy came subsequent to this.  What was in the affidavit was that he did not appreciate the significance of that at law because the jurisprudence about this developed post this.  It had nothing to do with it not taking it seriously enough or not being concerned about it.  The transcript reflects that he was concerned.

BELL J:   The Court of Criminal Appeal considered that in the circumstances of this case there was no miscarriage of justice.  Was there any submission made by the Crown respecting the proviso in the event that it was a miscarriage?

MR THANGARAJ:   The Crown’s position – I will have to – I cannot remember that, your Honour.  The Crown’s initial position was that there was a miscarriage but that ‑ ‑ ‑

BELL J:   That was the concession that was made by the Crown advocate which was subsequently withdrawn.

MR THANGARAJ:   Yes, but could I just say this in relation to one of the matters that the Court said was that there was no – this is at application book 223:

no authority for the proposition that merely because the prosecution has obtained inadmissible material potentially relevant to the defence of the accused, the trial will therefore be unfair. 

We say that that is an important question that requires authoritative consideration.  The absence of the authority at the moment is one of the reasons that this Court, we respectfully submit ‑ ‑ ‑

BELL J:   I am sorry, can you just take me to that ‑ ‑ ‑

MR THANGARAJ:   Page 223, your Honour, sorry, it starts at 222, your Honour.  Line 52 if you are ‑ ‑ ‑

BELL J:   Well, surely, that proposition is unexceptional, is it not?

MR THANGARAJ:   No, no, that is why we are saying that one of the questions we ask that the Court consider is the question now of there is no authority on this point and it is a point of the question that ‑ ‑ ‑

BELL J:   But you do not contend for the articulation of a principle that whenever the prosecution obtains inadmissible material potentially relevant to the defence of the accused without more, a trial will, as a matter of law, be unfair without any investigation into the matter, surely?

MR THANGARAJ:   We are not putting it that way, your Honour, no.  We are putting it in the way that Mr Game has detailed it.  The previous

sentence above that is what is important in that viewed in its own terms there was no miscarriage of justice in the present case.  There are three reasons.  That is one of them.  Both in that reason and the third reason at line 45, the high point of the case was the prosecution obtained at their own request.  The high point was not limited to that.  The high point was, at the very least, the benefit that the prosecutors informed the court about.  The second and third, your Honours will see at line 38, the second was constrained by the absence of “practical unfairness” and so was the third one.

FRENCH CJ:   Do you say the benefit was insight into lines of defence – or possible lines of defence, I should say?

MR THANGARAJ:   Yes.

FRENCH CJ:   Right, thank you, Mr Thangaraj.  Mr Solicitor.

MR SEXTON:   If the Court pleases.  Your Honours, the density of the material to which Justice Bell has already alluded tends, we would say, to obscure the fact that there is not a special leave point buried in all of this material.  Can I just remind your Honours that the convictions in this case in relation to Mr Jason Lee, one count of firearm possession and two counts of drug supply, and that his examination before the Crime Commission did not relate to any of those matters - I will come back to one aspect of that a little bit later.

In the case of Mr Seong Lee there were four counts of possession of a firearm conviction and weapons about which his examination did not touch on and one count of knowingly taking part in the supply of drugs where, arguably, there may have been some connection with the examination.  I will come back to that as well.  Really, out of the eight counts involved here there is only one, we would say, about which the argument can be made that there was any connection with the charges and with the ultimate convictions.

It is important to note, we would say, that these are not cases, as in Lee - the High Court’s most recent decision in Lee - where the applicants were questioned or would be, as was it was conceded in Lee, in relation to the subject matter of the charges already laid and nor are they cases in the sense of X7 or Lee where the question is one of potential prejudice to a future trial arising out of the questioning by the investigatory body. 

FRENCH CJ:   Both of those cases really concern the scope of the investigative power conferred by statute.  We are dealing here with really a different question, albeit it is said to be informed by the underlying general principles concerning the fundamental nature of the accusatorial process.  I think the point, as I extract from what Mr Game has said and what Mr Thangaraj has said, is (a) has there been some irremediable compromise of that process by what has occurred; and, (b) have the prosecutors obtained some benefit and in the case of Mr Game’s client, has there been a closing off of a possible course of action at trial?

MR SEXTON:   Yes, now I will deal with those, your Honour.  Could I just say one more thing about that, though, that in this case we have a trial so it is possible to assess whether any prejudice actually occurred.  I know it does not address your Honour’s first point.  The court below considered that the trial had not been affected by unfairness.

BELL J:   Now, in that respect, the court dealt with this in relation to each case, I think, on the basis that in neither instance had this unauthorised disclosure resulted in a miscarriage of justice, so it was an irregularity but not an irregularity amounting to a miscarriage of justice.  Are you able to say, by the way, Mr Solicitor, whether the Crown relied in the event the court came to a different view on that issue on the proviso?

MR SEXTON:   I think there might have been some brief submissions but I think the reality was that it was – the argument on the other side was that this was an irregularity that, in effect, made the trial a nullity and that in those circumstances the question of the proviso just did not arise.

BELL J:   What do you say to the point that is taken against you that the Court of Criminal Appeal is said to have applied some statements made by Justice Gageler respecting a Victorian statute to require a causal connection before one could make good an assertion of miscarriage of justice – a causal connection with the conviction?

MR SEXTON:   Your Honour, the question is really here whether ‑ and it is to address that first point that the Chief Justice just raised that, in a sense, the argument still here on the other side subject to the second point that the Chief Justice raised, but the first point is that the trial is that in these circumstances where the prosecution had access to material that even if it did not have any benefit at all to the prosecution, if it did not prejudice the defence in any way, nevertheless, that that is an irregularity that would result in the trial being nullified.  It would not be a trial according to law. 

We would say that that cannot be right.  If one thinks of recent decisions in the High Court, I mean, Handlen is an example, where the trial proceeded there on a basic misconception as to the applicable law, well, that is an example of an irregularity that would have that result.  But we would say that in the absence of any prejudice being demonstrated, just let us assume that for the moment before I come to those other two points, that that could not result – it is not an irregularity of that kind.

Now, if I can just come to the two examples that are put against us and if I just take the example of Mr Jason Lee and he was examined in relation to, if I can put it broadly, his financial affairs.  It is true that at the trial the combination of the weapons and the drugs and the money all being found together was relied upon as a – in a collective sense but it seems to us impossible that at the trial he would have ever been ‑ wanted to provide an innocent explanation for the possession of the money, in other words, to concede the ownership of the money while at the same time denying any ownership or connection with the weapons or with the drugs.  In other words, the defence just simply in a feasible sense, was not open, so that he was never deprived of any available defence by that examination about his financial affairs generally by the Crime Commission. 

As your Honour Justice Bell has pointed out, the financial documents and statements were found in any event.  The exact copies were – substantially exact copies were found when the search warrant was executed so that – not that they played any role, as it happens, in the trial.  That was the example, I think, relied upon in the case of Mr Jason Lee. 

Now, in the case of Mr Seong Lee, your Honours were taken to page 337 of the application book and it is paragraph 5 there concerning the affidavit by his solicitor, Mr Stewart, where he said that – and bear in mind that this would only relate, in a sense, to the one drug count, not the four.

BELL J:   But the force of it at a trial where one is confronting a number of counts, the force of it in the way Mr Game relies on it is that the possibility of giving evidence was foreclosed.  If that be a good argument, it applies to all the counts, surely.

MR SEXTON:   Well, I was just coming to say that the Court of Appeal did not accept that proposition, of course, that there was any prejudice to his defence.  One reason for that, which I will come to, is that in that affidavit, Mr Stewart raises that question of whether calling him, his client, at the trial was then foreclosed.  Your Honours do not have the transcript of the proceedings before the Court of Appeal but at page 76, this was a matter raised by Justice Hall with Mr Game in the Court of Criminal Appeal and Justice Hall pointed out that Mr Stewart does not say in the affidavit that he discussed this question with anyone, including counsel for Mr Seong Lee.  Mr Game agreed that that was so and said that Mr Stewart could not put it any higher than he had in his affidavit. 

But it seems to us, in those circumstances, it is a pretty steep proposition to say that that raises an aspect of significant prejudice in relation to the way in which the trial was actually run.  As I say, it goes to one count because none of his examination before the Crime Commission concerned the question of firearms and so on.  I appreciate what your Honour says about them, the various counts at the trial, but there is a sense there in which, as I say, that there may be distinctions here between Mr Jason Lee and Mr Seong Lee in terms of the strength of the argument but we would say that in both cases - and I have taken your Honours to the factual matters - but that the Court of Appeal considered that in neither case was there any prejudice.

Can I just refer there on the question of the – because one of the things that seems to be at the heart of this is the question of the right of an accused to reserve his or her defence until the trial.  Chief Justice Mason noted in Hamilton v Oades (1989) 166 CLR 486 at 499 that it is not a right at common law or statute to reserve the defence except in the sense that the accused enjoys the right to silence and then Justice Mason said:

The so‑called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed.

It really goes to the question of whether one has an irregularity here that would nullify a trial, in the absence of any prejudice.

BELL J:   I think in the way the Court of Criminal Appeal reasoned, it was that having regard to the issues that were live at this trial the disclosure of the material contained in the transcripts in each case did not produce a miscarriage because, as I understand their Honours’ reasoning, the contents did not materially tip anyone’s hand. 

MR SEXTON:   Yes.  I am not – I am just really making – your Honour, perhaps I am not making it clear that I am just making a general point that it would not follow in every circumstance where some aspect of the defence was disclosed in advance that it would have the effect of causing the trial to miscarry.

FRENCH CJ:   What do you say to the proposition as a matter of fact that the disclosure of the materials to the prosecutors gave them an insight into possible lines of defence?

MR SEXTON:   I think I have tried to take your Honour to say that they were not lines of defence that were available in here.

FRENCH CJ:   That is the bottom line.

MR SEXTON:   Yes, in this case.  I mean, this is a case where – the reason we would say it is not a suitable case for special leave is that in the absence

of any demonstrated or demonstrable prejudice, I mean, there really is an academic element to the whole exercise here.

BELL J:   Just in relation to Seong Lee’s case, I think you do accept that the examination in his case touched on the drug charge.  Is that so?  So that ‑ ‑ ‑

MR SEXTON:   Yes, in a rather marginal way, I might say, in a sense, not about possession or supply but about some dealings with the material, transport of it essentially.  But, yes, it is – there is the distinction between his case and between Mr Jason Lee’s case in that sense, but again the question is what was the impact of this at the trial.  The Court of Appeal said there was not any and, indeed, despite Mr Stewart’s affidavit, does not seem to take the matter really, as far as we can see, any further in terms of the way in which the trial was conducted. 

As Ms Davidson points out to me the real point of the case in relation to Seong Lee was the material was found in his premises and not the earlier dealings with the soap powder, if I can call it that, which was the point of the examination before the Crime Commission on the basis that the examination did not touch on the material – did not go to the question of the material that had been found in the apartment.  Those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Mr Game.

MR GAME:   The last proposition is factually incorrect because the washing powder is the very subject matter of the drugs charges and nobody but nobody has suggested to date that the questioning of Mr Seong Lee was marginal.  It was, with respect to Mr Pak and the washing powder, and the two drug charges against my client were by far the major charges and they are by far the major part of his sentence.  So it is not arguable, it is inexorable that is the connection. 

Now, in respect of Mr Stewart’s affidavit, there is the whole problem of waiving privilege, so that if you start going into communications with the client then you have waived privilege.  So it is a very difficult exercise to actually deal with.  Can I say this, your Honours, if I could just take you to paragraph – and the case was not resolved on the basis of marginality as was put by the Crown.  The case was put on the basis that we could not establish what is described as “practical unfairness” in the way that is articulated by Justice Basten. 

If I could just take you to one passage in X7 at paragraph 124 in the Commonwealth Law Reports at page 142, that is a case about compulsory examination said to be being kept secret and it is said there is the breach of the accusatorial system.  We have gone way past that in this case.  We have got the illegal dissemination, possession, knowledge and consideration ‑ ‑ ‑

BELL J:   The distinction, Mr Game, is between why one would not construe an act as having the effect of compelling the examination of a person charged but not yet tried for a criminal offence about the subject matter of the charge and the trial that has, in fact, been held where it is possible to give consideration, as the Court of Criminal Appeal did, to whether this irregularity had any effect on the trial that was had. 

MR GAME:   Yes, I understand, your Honour, but if one looks at shall I say the two different perspectives in the minority and majority judgments in X7, one is saying we have all these protections such as in section 25A and they are sufficient and the other says there are necessary implications in terms of questioning.  The underlying idea is the same, that is to say, very protective of the adversarial process. 

Now, if you come to a – there is a special – there is a quite important special leave point that emerges in this case out of that which is what law does one have to establish beyond the distinct breach of the accusatorial system in the way in which we have established.  Does one have to go further?  That undoubtedly, in our submission, is a special leave point and it unquestionably arises from that which is concluded at paragraph 164.  To that I would add ‑ ‑ ‑

BELL J:   Can you just give us the page reference?

MR GAME:   Yes, sorry, 223 paragraph 164, sorry, your Honour.  Now, the other thing is the case we are putting ‑ ‑ ‑

BELL J:   Can I just understand this?  Are you contending if you go to application book 222, paragraph 162, is your special leave point the contention, contrary to the Court of Criminal Appeal’s statement in that paragraph, that the mere fact that the prosecution has obtained inadmissible material potentially relevant to the defence of the accused will therefore necessarily render the trial unfair?

MR GAME:   Not at all. 

BELL J:   All right.  Well, what is the principle for which you ‑ ‑ ‑

MR GAME:   My submission is that that analogy is quite inapposite because that contemplates lawful possession of something that someone else, say the police or some authority – so that is quite a different situation.

BELL J:   Could you distil the principle for which you contend?

MR GAME:   Yes, your Honour, which is that if there is unauthorised possession of compelled material from the accused relating to the charges which is capable of informing the mind of the prosecutor and is known to the defence such that it is capable of affecting the conduct of the case, that is sufficient to establish a miscarriage of justice and that no ‑ ‑ ‑

BELL J:   It is a rather fact‑based principle, is it not?

MR GAME:   No, it is not, your Honour, not at all.  It really is not.  It says here we are.  This process has broken down.  There has been a trial – when I say what are you going to do about it, I am saying what is one going to do about it?  We say what is the point of the whole discourse if you have established this and then you ‑ ‑ ‑

BELL J:   The whole discourse in relation to X7, Mr Game, has as its point, if you like, that one does not construe the statute to confer the power.  That is a very different consideration.

MR GAME:   I understand that but what has become clear also – my red light has come on, can I just finish for one moment but the point is that this case was dismissed upon, shall I say, an assumption about the proviso when the proviso really was not engaged.

BELL J:   Were there any submissions directed to the proviso?

MR GAME:   I think it was really very ‑ ‑ ‑

FRENCH CJ:   You are saying the “practical unfairness” test is a surrogate for a proviso.

MR GAME:   That is right and that is why you get to the “did not lose a chance of” ‑ ‑ ‑

FRENCH CJ:   Your red light is on, thank you.  Yes, Mr Thangaraj.

MR THANGARAJ:   I will just ask your Honours to go to application book 167.  At the very bottom of that page the Court said that:

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 . . . and the protection of the fairness ‑ ‑ ‑

FRENCH CJ:   This is not a case about the power.  The special leave point that you seek to raise is not about the power, is it?  It is about the consequences of an unauthorised distribution of the transcripts.

MR THANGARAJ:   Yes, plus the two things which I have raised about the derivative use immunity issue of the statutory construction and the dissemination to the Director’s office.  But also, leave was granted on the basis of the protection of the fairness of criminal trial. 

Could I just then quickly take your Honours to application book 173.  At lines 43 over the page, I will not read it out, but that is the original concession and that is, to go back to something your Honour Justice Bell asked me earlier, that is the careful analysis that was undertaken by the Director’s office in relation to the examination transcripts.

So how we characterise it as a result does not matter, the concession being withdrawn, but as a fact that is the way it was dealt with.  Could I just say one further thing?  Your Honour Justice Bell asked me about our position with respect to our solicitor’s evidence in relation to our client giving evidence or not.  We do not unfortunately have it here but my solicitor is in court and he has noted the following came from his affidavit that he was concerned that the Crown had the transcript – this is in his evidence, the affidavit – concerned that they had the transcript, concerned about our client being cross‑examined, concerned that they could use the materials against him.  Now, certainly having the transcript you could fashion lines of cross‑examination.  He might feel that the accused is locked into a position or you know something that – so that advantage certainly arose.

FRENCH CJ:   Thank you, Mr Thangaraj.  The Court will adjourn briefly to consider what course it should take.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.19 AM:

FRENCH CJ:   The Court is of the view that there should be a grant of special leave in each case but confined to grounds 2.1 and 2.3 in each of the draft notices of appeal.  There are standard directions in relation to the filing of the notice of appeal and the filing of submissions. 

The Court will now adjourn to reconstitute.

AT 11.19 AM THE MATTERS WERE ADJOURNED