New South Wales Crime Commission v Lee

The New South Wales Crime Commission appealed to the Court of Appeal from a decision of a primary judge who had refused, but not dismissed, an application for examination orders against Jason Lee and Seong Won Lee. The Commission sought these orders under the *Criminal Assets Recovery Act 1990* (NSW) to investigate property potentially derived from criminal activity, at a time when criminal charges were pending against Jason Lee. The primary judge's refusal was based on concerns that making such orders would interfere with the administration of justice in the pending criminal proceedings.

The Court of Appeal was required to determine whether it should intervene in the primary judge's discretionary decision, particularly in light of the principles established in *House v The King*. It also had to consider whether the powers to order examinations under the *Criminal Assets Recovery Act 1990* were limited by general law principles concerning fair trials, and whether a suppression order could be made to prevent prejudice to a future criminal trial. Further issues included whether the primary judge's oversight in refusing rather than dismissing the application meant the Court of Appeal should make the order that should have been made, and if so, whether that order should take effect from the date of the primary judge's original decision.

The Court of Appeal held that the primary judge had erred in exercising his discretion. It found that the *Criminal Assets Recovery Act 1990* conferred broad powers to make examination orders, and that the potential for interference with the administration of justice or prejudice to a future trial did not, in themselves, preclude the making of such orders. Instead, the Court reasoned that procedural protections, including the possibility of suppression orders under the *Court Suppression and Non-publication Orders Act 2010* (NSW), were available to mitigate any such risks. The Court concluded that the primary judge had applied an overly restrictive interpretation of the statutory powers.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the primary judge's order. It then made the examination orders sought by the Commission, directing that Jason Lee be examined concerning his own affairs and Seong Won Lee be examined concerning the affairs of Jason Lee or Elizabeth Park. The Court also ordered that the Commission's notice of motion be dismissed, with that dismissal to take effect from the date of the primary judge's original orders, and ordered the respondents to pay the Commission's costs of the appeal, granting the respondents certificates under the *Suitors' Fund Act 1951* (NSW).