New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

New South Wales Crime Commission v Jason Lee [2012] NSWCA 276

The Criminal Assets Recovery Act 1990 (NSW) expressly abrogates privilege against self-incrimination and provides that the existence of criminal proceedings is not a ground to stay proceedings under the Act. Therefore, an examination order under s 31D can be made notwithstanding pending criminal charges, with procedural safeguards such as suppression orders available to address any real risk of prejudice to a fair trial. The original discretionary refusal was an error and the Court of Appeal should make the examination orders sought.

Parties
Applicant: New South Wales Crime Commission; First Respondent: Jason Lee (aka Do Young Lee); Second Respondent: Seong Won Lee
Jurisdiction
Australia
Judgment Date
06 September 2012
Procedural Posture
Civil Appeal / Leave to Appeal and Appeal From Orders in the Supreme Court Common Law Division
Outcome
Appeal allowed; leave to appeal granted and examination orders made under s 31D of the Criminal Assets Recovery Act 1990 (NSW); costs orders and suppression certificates granted.
Legal Topics
Recovery of Proceeds of Crime, Suppression Orders, Privilege Against Self Incrimination, Statutory Interpretation, Interlocutory Issues, Discretionary Decisions, Leave to Appeal
Criminal Law Civil Procedure Recovery of Proceeds of Crime Suppression Orders Privilege Against Self Incrimination Statutory Interpretation Interlocutory Issues Discretionary Decisions +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 38 Party arguments 2
Sign in to unlock

Parties

New South Wales Crime Commission

Applicant

Jason Lee (aka Do Young Lee)

First Respondent

Seong Won Lee

Second Respondent

Procedural Posture

Civil Appeal / Leave to Appeal and Appeal From Orders in the Supreme Court Common Law Division

Legal Issues

  1. 1 Whether the Court of Appeal should make an order otherwise dismissing the application before the primary judge
  2. 2 Whether leave to appeal should be granted
  3. 3 Whether orders for examination of respondents under Criminal Assets Recovery Act 1990 (NSW) s 31D should be made where criminal charges are pending

Ratio Decidendi

The Criminal Assets Recovery Act 1990 (NSW) expressly abrogates privilege against self-incrimination and provides that the existence of criminal proceedings is not a ground to stay proceedings under the Act. Therefore, an examination order under s 31D can be made notwithstanding pending criminal charges, with procedural safeguards such as suppression orders available to address any real risk of prejudice to a fair trial. The original discretionary refusal was an error and the Court of Appeal should make the examination orders sought.

Court Disposition

Appeal allowed; leave to appeal granted and examination orders made under s 31D of the Criminal Assets Recovery Act 1990 (NSW); costs orders and suppression certificates granted.

Orders

  • Notice of motion filed by the Commission on 10 June 2010 otherwise dismissed, order to take effect from 28 February 2011.
  • Leave to appeal granted; appellant directed to file notice of appeal within seven days.