New South Wales Crime Commission v Jason Lee
[2011] NSWSC 1037
•18 August 2011
Supreme Court
New South Wales
Case Title: New South Wales Crime Commission v Jason Lee Medium Neutral Citation: [2011] NSWSC 1037 Hearing Date(s): 18/08/2011 Decision Date: 18 August 2011 Jurisdiction: Common Law Before: Garling J
Decision: 1) Application dismissed.
2) The plaintiff to pay the costs of the defendants.Catchwords: CRIMINAL LAW - Criminal Assets Recovery Act 1990 - Notice of motion seeking orders for the examination of first and fourth defendants refused - Current notice of motion seeks same examination orders and includes non-publication order application - Whether orders sought constitute revisiting of orders formerly sought by the notice of motion or before Court of Appeal - Non-publication orders are relevantly identical under s 62 of the Criminal Assets Recovery Act and s 7 of the Court Suppression and non-publication Orders Act - No change in circumstance - Application constitutes abuse of process - Application dismissed
Legislation Cited: Criminal Assets Recovery Act 1990
Court Suppression and Non-publication Orders Act 2010Cases Cited: D A Christie Pty Ltd v Baker [1996] 2 VR 582
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315
Nominal Defendant v Manning (2000) 50 NSWLR 139Texts Cited: Nil
Category: Interlocutory applications Parties: New South Wales Crime Commission (P1)
Jason Lee (D1)
Seong Won Lee (D4)Representation - Counsel: Counsel:
R Bromwich SC (P)
M Thangaraj SC / G Jones (D1)
G Jones (D4)- Solicitors: Solicitors:
NSW Crime Commission (P)
Nyman Gibson Stewart (D1, D4)File number(s): SC 2010/118966 Publication Restriction: Nil
Judgment (Ex tempore)
HIS HONOUR: This is an application brought by an amended notice of motion by the New South Wales Crime Commission seeking orders pursuant to s 31D(1)(a)(i) of the Criminal Assets Recovery Act 1990 for the examination on oath of the first defendant, Jason Lee and the fourth defendant, Seong Won Lee concerning the affairs of Mr Jason Lee, including the nature and location of any property in which he has an interest.
The Commission does not read any affidavit or other evidence in support of the motion but has usefully and helpfully provided to the Court a bundle of documents which has become Exhibit A which includes the previous orders, the pleadings, transcripts and judgments of various hearings of this Court and of the Court of Appeal.
As well, the evidence read by the defendants provides some background, to which I will come, of the criminal proceedings which have taken place.
Existing Criminal Proceedings
Before proceeding to the issues raised by the amended notice of motion, it is necessary I give a little of the background to the present criminal proceedings.
In May 2010, Jason Lee and Seong Won Lee, to whom I will without meaning any disrespect refer to as the Lees, were charged in relation to the location by police of $1.147 million in cash at the residential address of Seong Won Lee, and also their alleged involvement in the supply of a large commercial quantity of drugs and the possession of various prohibited firearms which were also located at the premises of Seong Won Lee.
In November 2010, his Honour Judge Solomon of the District Court of New South Wales ordered that there be a separate trial of the money laundering offence relating to the $1.147 million in cash found at the premises of Seong Won Lee and the remaining drug and firearm offences.
In January 2011, a trial commenced before Judge Solomon in respect of the drug and firearm offences. On 16 March 2011, the Lees were each found guilty of the offences by a jury and convictions were entered. They are yet to be sentenced. I am told that sentencing proceedings have been adjourned to a date in October 2011. The money laundering charge I am told is likely to be heard by a jury towards the end of 2011.
As well, Mr Jason Lee has been charged with a series of offences relating to possession of drugs, goods in custody and knowingly dealing with the proceeds of crime. These offences have been fixed to be heard by a trial with a jury which is due to commence on 8 October 2011.
It is clear from this short recitation that some, but not all, of the criminal charges with which the Lees were concerned have been disposed of. As well, until the Lees are sentenced in respect of the drug and firearm offences, consideration of any appeal against either conviction or sentence has not arisen.
History of the Commission's Applications
It is necessary now to give some history of the proceedings before this Court brought by the Commission.
On 13 May 2010, Buddin J, after an ex parte hearing, made a series of orders which restrained Mr Jason Lee from, putting it shortly, dealing with or disposing of specified property. He also made an order in the following terms:
"Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 there shall be an examination on oath of the following persons before a Registrar concerning their own affairs and the affairs of each other including the nature and location of any property in which any of them have an interest:-
(a) Jason Lee (also known as Do Young Lee; and
(b) Elizabeth Pak".
On that day, Buddin J also made an order under s 12(1) of the Criminal Assets Recovery Act providing for an examination of the fourth defendant, Seong Won Lee, before a Registrar concerning the affairs of Jason Lee and Elizabeth Park. The precise terms of that order mirror those which were made with respect to Jason Lee.
On 11 June 2010, the Lees filed a summons in the Court of Appeal seeking leave to appeal against the examination orders. The effect of filing that summons is that the examination orders are held in abeyance pending the outcome of that summons and any appeal, if leave is granted. I do not know whether that summons has been listed for hearing or not.
On 10 June 2010, the Commission filed a notice of motion which sought orders with respect to the Lees in identical terms. It is sufficient if I set out the first of those orders, being the one which affects Jason Lee. It is in these terms:
"Pursuant to s 31D(1)(a) of the Criminal Assets Recovery Act 1990, Jason Lee (also known as Do Young Lee) shall be examined on oath before a Registrar concerning his own affairs and including the nature and location of any property in which he has an interest, such examination to take place at 11:00am on 1 July 2010".
As I have said, an order effectively in identical form, was sought with respect to the fourth defendant, Seong Won Lee, although the order for examination was intended to deal with the nature and location of any property in which Mr Jason Lee or Ms Elizabeth Pak had an interest.
The orders sought in that notice of motion which included orders against two other individuals came on for hearing before R S Hulme J in the Common Law Division of this Court on Monday 28 June 2010. At that time, the Commission was represented by counsel as were each of the respondents to the motion, namely the four individuals including the Lees.
Evidence was tendered to his Honour in support of that motion. At the end of the evidence and submissions, his Honour reserved his decision.
On 28 February 2011, R S Hulme J delivered his judgment with respect to the orders sought in the notice of motion. He granted the orders which were sought in respect of two individuals, Ms Elizabeth Pak and Mr Brendan Pak. But he refused to grant the orders sought with respect to the Lees.
His Honour's judgment is the subject of a summons seeking leave to appeal filed by the Commission on 30 May 2011. The orders sought in that summons are in the following form:
"Leave to appeal from that part of the decision below in relation to the finding of his Honour, Justice R. S. Hulme, that:
(a) the examinations of Jason Lee (also known as Do Young Lee) and Seong Won Lee pursuant to section 31D of the Criminal Assets Recovery Act 1990 would prejudice the fair trial of either or both of Jason Lee (also known as Do Young Lee) and Seong Won Lee; and
(b) orders for the examination of Jason Lee (also known as Do Young Lee) or Seong Won Lee pursuant to section 31D of the Criminal Assets Recovery Act 1990 should not be made."
In support of that summons, the Commission has filed a summary of argument and a supplementary summary of argument. It will be necessary to return to those documents in due course.
The amended notice of motion filed by the Crime Commission today seeks orders as I have said for the examination pursuant to s 31D(1)(a)(i) of the Lees with respect to the affairs, nature, location of property and the like of Mr Jason Lee. It also includes an application for the following order:
"Pursuant to s 7(b) and the Court Suppression and Non-publication Orders Act 2010, any evidence given by the first defendant or the fourth defendant at an examination conducted pursuant to Orders 1 to 4 above is not to be published as defined in section 3 of that Act, or disclosed by any person other than:
(a) for the purposes of these proceedings; or
(b) for the purposes of proceeds in respect of any false or misleading evidence given at such an examination,
until further order of the Court upon the ground that this order is necessary to prevent prejudice to the proper administration of justice in relation to criminal proceedings against the first defendant and/or the fourth defendant that are pending or under appeal."
Submissions on the Amended Notice of Motion
The Commission submits that this Court is concerned on the present application with the effective maintenance of the right of silence by the Lees in relation to outstanding criminal charges. It submits that where there is an order of the kind sought under s 7(b) of the Court Suppression and Non-publication Orders Act 2010 to which I will refer for convenience only and without intending to decide any legal issue as a non-publication order, there can be no risk or no real risk of prejudice to existing or incomplete, and future criminal proceedings.
It is to be observed from the history which I have recounted that the actual orders sought by this amended notice of motion with respect to the examination of the Lees are in effectively identical form to those orders sought from R S Hulme J and which R S Hulme J refused. The only difference between the two motions is that a non-publication order is sought contemporaneously with the orders for examination.
It is because of this difference, that the Commission submits that it is not seeking to revisit the judgment of R S Hulme J which dismissed the applications. Nor is it seeking to visit and engage in any of the issues which are before the Court of Appeal. It submits, candidly, that by this device of including an order for non-publication in the summons, it is attempting to side step the judgment of R S Hulme J and that this Court should take the view that it is entirely free to consider the issues raised. I do not agree.
It has long been held in this and other Courts, that a Court may regard the revisiting of orders which had formerly been sought by a motion in a second notice of motion, as an abuse of process. I do not say that the authorities suggest that this is an absolute rule of law, it is nevertheless a relevant matter for consideration.
Hayne JA when sitting as a member of the Court of Appeal in the Supreme Court of Victoria in D A Christie Pty Ltd v Baker [1996] 2 VR 582 at 602 said the following with respect to an application dealing with a limitation issue in a civil suit:
"The prospects of there being successive applications ... suggests not only the possibility that there may be conflicting decisions given with the inevitable harm that follows from that but also that a respondent to such an application may be vexed by successive applications until the applicant either produces sufficient material to warrant the grant of an extension of time or tires of the task. It is not fanciful to conclude that the making of successive applications may well engender a belief in the respondent that the applicant had, in effect, hawked the application from judge to judge until a judge had been found who was willing to accede to the applicant's arguments. The vice of such a result is apparent.
Further, although it may be said that the awarding of costs on an indemnity basis may prove a sufficient deterrent to the making of repeated applications and may offer considerable protection to a respondent, I am of the view that it is not a complete protection."
His Honour then went on to say at 603 the following:
"It is clear that a court may stay its proceedings for abuse of process. There can be an abuse of process if proceedings are initiated for an ulterior and improper purpose ... But it is also clear that there can be an abuse if 'notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which had already been disposed of by earlier proceedings'."
The Court of Appeal in a decision of National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315 said at [17] in the judgment of Palmer J with whom Mason P and Santo JA agreed, this:
"It should be remembered that the majority in Nominal Defendant v Manning differed from the President only to the extent that they would not, without more, hold it an abuse of process for an applicant to make a second interlocutory application on the basis of evidence which could reasonably have been adduced in the first application."
Nothing said by their Honours could be construed as indicating a permissive or relaxed attitude of the Court to the bringing of more than one interlocutory application for the same order. Indeed quite the contrary.
The decision to which the Court referred, namely Nominal Defendant v Manning is reported in [2000] 50 NSWLR 139. What Justice Heydon said there at [72] was this:
"Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. The real evils to which Hayne JA referred in D A Christie Pty Ltd v Baker ... the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs - and others - damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily - are evils which each court in its individual discretion will rightly strain to avoid".
At the time that the orders were sought from R S Hulme J in this Court, a non-publication order with respect to an examination was available under s 62 of the Criminal Assets Recovery Act . Section 62 as it then existed permitted this Court to make
"such orders as it thinks fit with respect to the publication of any matter arising under this Act".
Whilst there were two pre-conditions for the making of such an order, the Commission accepts that those two pre-conditions were fulfilled in the circumstances of this case.
Since the decision of R S Hulme J, a new Act of Parliament entitled the Court Suppression and Non-publication Orders Act 2010 has come into effect. It commenced on 1 July 2011. It provides that this Court has the power to make a suppression order or a non-publication order where, amongst other things, it is necessary in order to prevent prejudice to the proper administration of justice.
It is the availability of this order and the fact that it is being sought at the time the examination order is sought which the Commission relies upon as constituting a sufficient change in circumstances from the order sought from R S Hulme J, so as to mean that this notice of motion is not an attempt to re-litigate the issues before R S Hulme J.
It is worthwhile examining the summary of argument which the Crime Commission has placed before the Court of Appeal in support of its appeal. At [17] of its principal summary of argument, the Crime Commission said this:
"The examinations sought were and are solely directed to the confiscation proceedings and have nothing whatever to do with the criminal proceedings against either proposed examinee. This is a position expressly contemplated by s 63 of the Act, which denies any right to a stay of confiscation proceedings by reason of incomplete criminal proceedings. Section 63 is supported by ss 13 and 13A which require any self incrimination answers to be given, but renders such answers inadmissible in criminal proceedings. It is also supported by s 62 of the Act in providing wide and unfettered scope for non-publication orders in the circumstances prevailing in this case".
The submissions go on to say in [18] that the non-publication power in s 62 of the Act gives the Supreme Court an unfettered discretion to make such orders as it thinks fit with respect to the publication of any matter arising under the Act and it argues in [19], that s 62 enables the Supreme Court to give the full range of protection necessary to ensure that the separation between proceedings under the Act of any criminal proceedings is not just legal and evidentiary but practical as well.
That summary of argument was filed before the Court Suppression and Non-publication Orders Act 2010 commenced. Subsequent to the commencement of that Act, the Commission filed a supplementary summary of argument. It drew the Court's attention to the new legislation and it said this at [6]:
"This legislative change does not adversely affect the substance of the applicant's ( the Commission's ) argument. It is apparent that s 7(b) ... is relevantly the same as the former s 62 in that it too is a provision giving a court a discretion to make a non-publication order."
It then identified differences in the application of s 7(b) but submitted to the Court of Appeal that those differences were immaterial in this case.
It then went on to submit this in [10]:
"On the reasoning of the judge below, an examination order for the respondents would still most likely have been refused by his Honour even if s 7(b), rather than the former s 62 had been the source of power to grant a non-publication order. The appeal point therefore remains for the determination by this Court".
It seems to me that the arguments placed by the Commission before the Court of Appeal in support of a direct challenge to the exercise of discretion by R S Hulme J to decline to make the orders for examination of the Lees, challenges the adequate and proper exercise of his Honour's discretion. It does so by arguing that there is no real risk to the administration of justice. Inherent in that argument, as I read it, is that nonpublication orders are relevantly identical under s 62 of the Criminal Assets Recovery Act and s 7 of the Court Suppression and Nonpublication Orders Act .
There is no merit in my view in the submission of the Commission to this Court on this motion that there is a difference of substance in the orders now being sought when compared with the orders being sought from R S Hulme J. It would be, and I regard it as, an abuse of process for this Court to entertain this application at this time.
Accordingly I dismiss the application.
I order that the plaintiff, the New South Wales Crime Commission, pay the costs of the defendants Jason Lee and Seong Won Lee of the motion
**********
1
2