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

___________________

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] HCATrans 314
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Mr. Lee against convictions for offences under the *Proceeds of Crime Act 2002* (Cth) and the *Criminal Code Act 1995* (Cth). The appeals concerned the interpretation and application of provisions relating to the forfeiture of assets derived from or related to criminal activity.

The central legal issues before the Court were whether the Commissioner of the Australian Federal Police had the power to make an application for a restraining order under s 40 of the *Proceeds of Crime Act 2002* in circumstances where the applicant had not been convicted of any offence, and whether the forfeiture provisions of the Act could apply to assets that were not directly the proceeds of crime but were otherwise related to the commission of an offence. The Court also considered the proper construction of the term "benefit derived from or derived from or in connection with the commission of the offence" within the context of the Act.

The High Court held that a restraining order under s 40 of the *Proceeds of Crime Act 2002* could be made even if the person concerned had not yet been convicted of an offence, provided that the Commissioner had reasonable grounds to believe that the person had committed an indictable offence. The Court further clarified that the forfeiture provisions could extend to assets that were not direct proceeds of crime but were acquired or used in connection with the commission of an offence, thereby giving a broad interpretation to the concept of "benefit derived from or in connection with the commission of the offence". The appeals were dismissed.

Orders