Lee v Director of Public Prosecutions (Cth) (No2) [2009] NSWSC 174

Lee v Director of Public Prosecutions (Cth) (No2) [2009] NSWSC 174

The applicant did not demonstrate prejudice sufficient to require a stay. Unlike Shaw, no criminal charges had been laid and the issues in any criminal proceeding were not shown to be identical; unlike Jo, the orders were founded only on suspicion that the applicant had acquired property that was proceeds of an offence, not on suspicion that he had committed a serious offence. The statutory protections in ss197 and 198 of the Proceeds of Crime Act 2002 (Cth) and s128 of the Evidence Act 1995 were relevant, and the asserted risk to self-incrimination was insufficiently concrete to justify interfering with the respondent's proceedings.

Jurisdiction
Australia
Judgment Date
20 March 2009
Procedural Posture
Application for Stay of Proceedings in Proceeds of Crime Act 2002 (cth) Restraining Order, Examination and Forfeiture Proceedings / Notice of Motion Seeking Stay of the Respondent's Applications for Examination Under S180 and Forfeiture Under S49
Outcome
Application for stay refused.
Legal Topics
['stay of Proceedings' 'privilege Against Self Incrimination' 'right to Silence' 'restraining Orders' 'forfeiture' 'examination Orders']
['proceeds of Crime' 'criminal Procedure' 'evidence'] ['stay of Proceedings' 'privilege Against Self Incrimination' 'right to Silence' 'restraining Orders' 'forfeiture' 'examination Orders']

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Procedural Posture

Application for Stay of Proceedings in Proceeds of Crime Act 2002 (cth) Restraining Order, Examination and Forfeiture Proceedings / Notice of Motion Seeking Stay of the Respondent's Applications for Examination Under S180 and Forfeiture Under S49

Legal Issues

  1. 1 ["Whether the respondent's applications for examination under s180 and forfeiture under s49 of the Proceeds of Crime Act 2002 (Cth) should be stayed until the applicant is informed whether he will be charged with an offence to which the restraining order relates." "Whether pursuit of the proceedings might prejudice the applicant's privilege against self-incrimination or compromise his position in any future criminal proceedings."]

Ratio Decidendi

The applicant did not demonstrate prejudice sufficient to require a stay. Unlike Shaw, no criminal charges had been laid and the issues in any criminal proceeding were not shown to be identical; unlike Jo, the orders were founded only on suspicion that the applicant had acquired property that was proceeds of an offence, not on suspicion that he had committed a serious offence. The statutory protections in ss197 and 198 of the Proceeds of Crime Act 2002 (Cth) and s128 of the Evidence Act 1995 were relevant, and the asserted risk to self-incrimination was insufficiently concrete to justify interfering with the respondent's proceedings.

Court Disposition

Application for stay refused.

Orders

  • ['Order sought in paragraph 5 of the notice of motion, being a stay of proceedings, is refused.' 'If necessary, the Court will hear argument on costs.']