LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2009] NSWCA 347

LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2009] NSWCA 347

The appeal failed because the statutory scheme of the Proceeds of Crime Act 2002 (Cth), particularly where a restraining order was made under s 19 and forfeiture was sought under s 49, was inconsistent with a stay absent specific justification amounting to abuse of process. The examination order issue was premature...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 October 2009
Procedural Posture
Application for Leave to Appeal and Appeal Against Refusal of a Stay in Proceedings Under the Proceeds of Crime Act 2002 (cth) / Court of Appeal; Leave Granted and Appeal Dismissed
Outcome
Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs in this Court.
Legal Topics
['proceeds of Crime' 'examination Orders' 'forfeiture Orders' 'privilege Against Self Incrimination' 'right to Silence' 'stay of Proceedings' 'abuse of Process']
['criminal Assets' 'evidence' 'human Rights' 'statutory Interpretation'] ['proceeds of Crime' 'examination Orders' 'forfeiture Orders' 'privilege Against Self Incrimination' 'right to Silence' 'stay of Proceedings' 'abuse of Process']

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Procedural Posture

Application for Leave to Appeal and Appeal Against Refusal of a Stay in Proceedings Under the Proceeds of Crime Act 2002 (cth) / Court of Appeal; Leave Granted and Appeal Dismissed

Legal Issues

  1. 1 ['The consequence of the procedure under the Proceeds of Crime Act 2002 (Cth) for recovery of proceeds of suspected crime upon the privilege against self-incrimination.' 'Whether that consequence justified a stay of the proceedings in relation to the proposed examination order.' 'Whether that consequence justified a stay of the proceedings in relation to the proposed forfeiture order.']

Ratio Decidendi

The appeal failed because the statutory scheme of the Proceeds of Crime Act 2002 (Cth), particularly where a restraining order was made under s 19 and forfeiture was sought under s 49, was inconsistent with a stay absent specific justification amounting to abuse of process. The examination order issue was premature because the Court had not yet exercised its discretion under s 180 and no approved examiner had issued an examination notice. The forfeiture proceedings should not be stayed merely because the applicant might face a practical choice between defending his property and risking disclosure of incriminating material; requiring a stay until charges were laid or disclaimed would...

Court Disposition

Leave to appeal granted; appeal dismissed; applicant ordered to pay the respondent's costs in this Court.

Orders

  • ['Grant the applicant leave to appeal from the judgment of Hidden J given on 20 March 2009.' 'Dispense with the requirements to file and serve the Amended Notice of Appeal.' 'Dismiss the appeal.' "Order that Mr Lee pay the Director's costs in this Court."]