Lee v New South Wales Crime Commission [2013] HCA 39

Lee v New South Wales Crime Commission [2013] HCA 39

The majority of the Court held that the CAR Act does not, by clear words or necessary implication, authorise the compulsory examination of a person about matters forming the subject of pending criminal charges against that person; any such authorisation would alter fundamental accusatorial principles of the criminal justice system and risk real prejudice to the fair trial, and cannot be inferred from general statutory language. A minority of the Court considered the terms of the Act (notably ss 13A, 31D, 63) demonstrated a legislative intention to permit such examinations under judicial supervision.

Parties
Appellants: Jason Lee (aka Do Young Lee) & Anor; Respondent: New South Wales Crime Commission; Intervener: Attorney-General of the Commonwealth; Intervener: Attorney-General for the State of New South Wales; Intervener: Attorney-General of the State of Queensland
Jurisdiction
Australia
Judgment Date
09 October 2013
Procedural Posture
Appeal / High Court of Australia Decision on Appeal From Supreme Court of NSW (court of Appeal)
Outcome
Appeal dismissed with costs.
Legal Topics
Examination Orders Under Proceeds of Crime Legislation, Privilege Against Self Incrimination, Right to Silence, Accusatorial System of Criminal Justice, Principle of Legality, Statutory Powers of Courts Vs. Executive Inquiries, Direct and Derivative Use Immunities, Interaction of Criminal and Civil Asset Forfeiture Proceedings
Statutory Interpretation Criminal Law Proceeds of Crime/asset Forfeiture Constitutional Law Examination Orders Under Proceeds of Crime Legislation Privilege Against Self Incrimination Right to Silence Accusatorial System of Criminal Justice +4 more

Case Brief

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Parties

Jason Lee (aka Do Young Lee) & Anor

Appellants

New South Wales Crime Commission

Respondent

Attorney-General of the Commonwealth

Intervener

Attorney-General for the State of New South Wales

Intervener

Attorney-General of the State of Queensland

Intervener

Procedural Posture

Appeal / High Court of Australia Decision on Appeal From Supreme Court of NSW (court of Appeal)

Legal Issues

  1. 1 Whether s 31D of the Criminal Assets Recovery Act 1990 (NSW) authorises examination of a person charged with an offence where the subject of the examination overlaps with the subject of the pending criminal charge.
  2. 2 Whether the Supreme Court has discretion to refuse an examination order under s 31D when criminal proceedings are pending or incomplete against the subject.
  3. 3 Whether the Act, by clear words or necessary implication, abrogates the right to silence and the privilege against self-incrimination in the context of pending charges.

Ratio Decidendi

The majority of the Court held that the CAR Act does not, by clear words or necessary implication, authorise the compulsory examination of a person about matters forming the subject of pending criminal charges against that person; any such authorisation would alter fundamental accusatorial principles of the criminal justice system and risk real prejudice to the fair trial, and cannot be inferred from general statutory language. A minority of the Court considered the terms of the Act (notably ss 13A, 31D, 63) demonstrated a legislative intention to permit such examinations under judicial supervision.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.