Lee v New South Wales Crime Commission

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ.,Kiefel J,Hayne J.,Crennan J.,Kiefel J.,Bell J.,Gageler,Keane JJ.
• Judgment Date: 09 October 2013
• Neutral Citation: [2013] HCA 39
• Docket Number: A1/2014
• Date: 09 October 2013

[2013] HCA 39

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler And Keane JJ

A1/2014

Jason Lee (Aka do Young Lee) & Anor

Appellants

and

New South Wales Crime Commission

Respondents

Representation

T A Game SC with G A Bashir and S J Free for the appellants (instructed by Nyman Gibson Stewart)

I D Temby QC with E C Muston for the respondent (instructed by New South Wales Crime Commission)

Interveners

J T Gleeson SC, Solicitor-General of the Commonwealth with D F C Thomas for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with N J Adams SC and J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

G J D del Villar for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law (Qld))

Lee v New South Wales Crime Commission

Statutes — Interpretation — Recovery of proceeds of crime — Examination orders — Appellants charged with offences — New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) — Subject matter of examination would have overlapped with subject matter of criminal proceedings — Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases — ‘accusatorial system of criminal justice’, ‘derivative use immunity’, ‘direct use immunity’, ‘examination’, ‘fair trial’, ‘principle of legality’, ‘privilege against self-incrimination’, ‘real risk of interference with the administration of justice’, ‘right to silence’, ‘serious crime related activity’.

Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.

ORDER

Appeal dismissed with costs.

French CJ.

Introduction

1 The presumption of innocence, the privilege against self-incrimination and the right to silence are important elements of the ‘accusatorial system of justice’ which generally prevails in the common law world. The privilege against self-incrimination reflects the long-standing antipathy of the common law to compulsory interrogations about criminal conduct. It has been said to be partly a result of ‘a persistent memory in the common law of hatred of the Star Chamber and its works.’ 1 It is recognised as a human right in international instruments, which apply to both the common law and civil law legal traditions 2. In the United States, the Fifth Amendment has clothed the privilege ‘with the impregnability of a constitutional enactment’ 3.

2 Executive governments have found aspects of the accusatorial system an inconvenience in the investigation of criminal conduct. Parliaments have enacted laws conferring powers on courts and investigative bodies to require persons to answer questions in hearings which may be in public or in private, including questions about whether or not they have engaged in criminal conduct. Generally speaking, such laws provide that the answers are not admissible in subsequent criminal proceedings, that is to say they provide a ‘direct use immunity’. However, absent a ‘derivative use immunity’ the answers may be used to discover evidence which is admissible against the person providing the answer.

3 In some cases, a person under statutory examination may already be facing criminal charges and find himself or herself being asked questions touching matters the subject of those charges. Whether a statute authorises a compulsory interrogation of an accused person in those circumstances is a question of statutory interpretation. The courts do not interpret a statute to

permit such questioning unless it is expressly authorised or permitted as a matter of necessary implication. When the text, context and purpose of a statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms. However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.

4 The Parliament of New South Wales has enacted such a law, the Criminal Assets Recovery Act 1990 (NSW) (‘CAR Act’) 4. It impinges upon the accusatorial system of criminal justice and, in particular, the privilege against self-incrimination and the right of a person to remain silent when accused of the commission of a crime. Section 31D of the CAR Act provides for the New South Wales Crime Commission (‘NSWCC’) to apply to the Supreme Court for the examination of persons in aid of confiscation orders, which include assets forfeiture orders, under the CAR Act. The appellants objected to such an examination on the basis that the CAR Act did not authorise their interrogation about conduct in respect of which there are pending criminal charges against them. A Judge of the Supreme Court of New South Wales, Hulme J, relying upon the decision of this Court in Hammond v The Commonwealth5, refused to make the order sought by the NSWCC 6. However, the Court of Appeal of the Supreme Court of New South Wales held that the examination was authorised, allowed the appeal against the decision of the primary judge 7, and ordered that the first appellant, Jason Lee, be examined on oath before a registrar concerning his own affairs and that the second appellant, Seong Won Lee, be examined on oath before a registrar concerning the affairs of Jason Lee or Elizabeth Park. The principal judgment was written by Basten JA, with whom Beazley, McColl and Macfarlan JJA agreed. Meagher JA wrote separate concurring reasons. The appellants have appealed by special leave to this Court 8. The primary question of construction on the appeal was whether s 31D would authorise an order for the examination of a person touching the subject matter of criminal charges pending

against that person. Assuming the answer to that question was in the affirmative, the second question was whether the Supreme Court had a discretion to refuse to make such an order. As a matter of implication the CAR Act does authorise an order for the making of an examination of a person on matters the subject of criminal charges pending against that person. There is a discretion in the Court to refuse to make such an order. There was no submission that the exercise of the discretion by the Court of Appeal miscarried. The appeal should be dismissed.

The CAR Act — an overview

5 More extensive accounts of the scheme and content of the CAR Act appear in the other judgments. It is sufficient for present purposes to direct attention to its salient features.

6 The first of the principal objects of the CAR Act is 9:

‘to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities’.

The last of the principal objects is ‘to enable law enforcement authorities effectively to identify and recover property.’ 10 The term ‘serious crime related activities’, appearing in the first principal object, when applied to a person, encompasses 11:

‘anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged:

The term ‘serious criminal offence’ covers a wide range of offences including drug trafficking 12 and money laundering 13. As appears from the first principal object and the definition of ‘serious crime related activity’, it is an object of the CAR Act that the procedures it creates for the identification and confiscation of property be capable of application to a person who has been charged with a serious criminal offence whether or not the person so charged has been tried. That conclusion was reinforced by s 62 of that Act, which provided for the Supreme Court to make orders with respect to the publication of any matters arising under the CAR Act in cases in which:

That section was repealed by the Court Suppression and Non-publication Orders Act 2010 (NSW) 14 and replaced by s 8 of that Act, which commenced on 1 July 2011.

• (a) has been tried, or

• (b) has been tried and acquitted, or

• (c) has been convicted (even if the conviction has been quashed or set aside).’

• • a person has been charged with an offence in relation to a serious crime related activity and proceedings on that charge have not commenced or, if the proceedings have commenced, they have not been completed; and

• • proceedings are instituted under the CAR Act for a restraining order, or an assets forfeiture order, affecting an interest of the person in property, or for a proceeds assessment order or an unexplained wealth order against the person.

7 The proposition that the procedures created by the CAR Act are capable of application to persons who have been charged with criminal offences is reinforced by s 63 of the CAR Act, which provides:

‘The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings.’

The appellants submitted that s 63 has a narrow operation and does no more than preclude the Court from relying upon the fact of the institution of criminal proceedings as a ground for a stay of proceedings under the CAR Act. Its narrow operation would not prevent the Court from staying or adjourning proceedings on the basis of particular circumstances and risk of prejudice arising in relation to pending criminal proceedings. Importantly, s 63 rests upon the premise that proceedings under the CAR Act may be instituted or in...