Lee v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Hayne,Kiefel,Bell,Keane JJ
• Judgment Date: 21 May 2014
• Neutral Citation: [2014] HCA 20
• Docket Number: S313/2013 & S314/2013
• Date: 21 May 2014

[2014] HCA 20

HIGH COURT OF AUSTRALIA

French CJ, Crennan, Kiefel, Bell and Keane JJ

S313/2013 & S314/2013

Do Young (Aka Jason) Lee

Appellant

and

The Queen

Respondent

Seong Won Lee

Appellant

and

The Queen

Respondent

Representation

M Thangaraj SC with G A Bashir for the appellant in S313/2013 (instructed by Nyman Gibson Stewart)

T A Game SC with S S Pararajasingham for the appellant in S314/2013 (instructed by Nyman Gibson Stewart)

N J Adams SC with J E Davidson and H R Roberts for the respondent in both matters (instructed by Solicitor for Public Prosecutions (NSW))

Criminal Appeal Act 1912 (NSW), s 6(1).

New South Wales Crime Commission Act 1985 (NSW), s 13(9).

Lee v The Queen

Criminal law — Appeal against conviction — Where appellants gave evidence before New South Wales Crime Commission (‘Commission’) — Where non — publication direction made under s 13(9) of New South Wales Crime Commission Act 1985 (NSW) — Where transcripts of appellants' evidence before Commission published to members of New South Wales Police Force and officers of Director of Public Prosecutions — Whether publication of appellants' evidence before Commission meant subsequent trial differed in fundamental respect from that which our system of criminal justice seeks to provide — Whether publication of appellants' evidence before Commission gave rise to miscarriage of justice.

Words and phrases — ‘miscarriage of justice’, ‘non — publication direction’.

ORDER

In each matter:

1. Appeal allowed.

2. Set aside paragraph 2 of the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 3 April 2013 and, in its place, order that:

• (a) the appeal be allowed;

• (b) the appellant's convictions be quashed; and

• (c) a new trial be had.

French CJ, Hayne, Kiefel, Bell and Keane JJ. The appellants and one Brendon Pak were the subject of an investigation by the New South Wales Crime Commission (‘the Commission’). As part of that investigation and pursuant to powers given by the New South Wales Crime Commission Act 1985 (NSW) (‘the NSWCC Act’) 1, the appellants were summoned by the Commission to give evidence before it. These appeals concern the publication of that evidence to members of the New South Wales Police Force and to officers of the Director of Public Prosecutions (‘the DPP’). The appellants submit that their joint trial on various drug and firearms offences miscarried as a result of the DPP's possession and possible use of that evidence.

2 The appellant in the first matter, Jason Lee (‘the first appellant’), was examined by the Commission on two occasions, on 26 November and 1 December 2009. At the time of the examinations, he had not been charged with the offences in question.

3 Section 13(9) of the NSWCC Act required the Commission to make a direction prohibiting the publication of evidence given before it where publication might prejudice the fair trial of a person who may be charged with an offence. A direction was made by the Commissioner on the occasion of the first appellant's first examination in these terms:

‘I direct that any evidence given by this witness or tendered or produced in the presence of this witness or any information that might enable this witness to be identified as a person who has given evidence before the Commission, shall not be published except in such manner and to such persons as the Commission specifies.’

4 It is accepted that this direction continued to apply to the first appellant's second examination.

5 On 7 December 2009, members of the New South Wales Police Force executed a search warrant at premises in Sydney, where a firearm and a quantity of white powder in boxes labelled ‘washing powder’ were found. In another part of the premises, another weapon, a quantity of white powder and a substantial

quantity of cash were found. The first appellant was charged with possession of prohibited firearms and an offence in the nature of money laundering, connected to the cash found at the premises. A strong suspicion was held that the powder seized was drugs, but drugs charges could not be laid until tests of the powder had been completed.

6 The appellant in the second matter, Seong Won Lee (‘the second appellant’), is the first appellant's son. The second appellant was present at the premises when the search warrant was executed and was charged with firearms offences. He was examined on 1December 2009. At that time, charges against both appellants relating to the supply of prohibited drugs were imminent. A direction under s 13(9) was not made when the second appellant came to be examined, but it was accepted by the Crown in the court below that such a direction ought to have been made. That is clearly correct, as the supply of drugs charges were, at the time, anticipated. These proceedings have been conducted on the basis that the second appellant's evidence before the Commission was subject to a direction in the same terms as that set out in relation to the first appellant above.

7 Pseudoephedrine was subsequently found in some of the powder. In May 2010, the first appellant was charged with two counts of the supply of prohibited drugs, and the second appellant with one count of supply and, alternatively, of being knowingly concerned in the first appellant's supply of the drugs found in one part of the premises searched by police.

8 The transcripts of the appellants' evidence before the Commission were published by the Commission to the police and to the DPP. Documents which had been produced by the first appellant to the Commission were also made available to potential witnesses, the police and the DPP. The focus of these appeals is on the publication of the transcripts of the appellants' evidence to the DPP.

9 In July 2010, a solicitor with the DPP who was preparing the prosecution of the charges against the appellants emailed the police officer who had been seconded to the Commission and had laid the charges against the appellants (‘the charging officer’) 2. The solicitor asked if she could see the transcripts of the appellants' evidence given before the Commission, ‘especially if it is something that defence are going to try & rely on — specifically that they had no knowledge

that the washing powder was actually drugs.’ The charging officer forwarded the email to an officer of the Commission, who advised the counsel assisting the Commissioner, regarding the transcripts, that the DPP ‘need[s] to know whether there is content in them which the defence may rely on’. The counsel assisting forwarded this email to the Commissioner. A short time later, the Commissioner responded, ‘[a]pproved’. The transcripts of the appellants' evidence before the Commission were made available to the DPP. It is not suggested that, in approving this publication, the Commissioner turned his mind to the purpose of s 13(9) and the direction which had been made. The Crown's concession that publication was unlawful, discussed later in these reasons, would appear to accept that he did not.

10 At a pretrial hearing held in the District Court of New South Wales on 23 November 2010, a question concerning the relevance of evidence of property owned by a company controlled by the first appellant to the drugs charges was raised. In the course of discussion, the Crown Prosecutor advised the Court that this evidence:

‘is led to rebut any innocent explanation of, firstly, the cash that was found in the unit, but also we say it goes to the possession of the drugs, because we say that is the only rational explanation for not only the cash, but the property themselves that has been purchased by the company supports that suggestion.’

The prosecution case relied upon the presence of the money, the drugs and the guns at the premises to support an inference of guilt respecting the drugs charges. The Crown Prosecutor continued:

‘[T]he Crown has nothing much to go on as to how the defence will be run, and obviously not required to indicate how they are going to run their defence, but both of the accused were examined at the Crime Commission, and whilst that evidence isn't admissible in these proceedings I suppose it gives us a bit of an idea where they might be heading…

Well we are not in a position to lead that evidence. All I'm saying, your Honour, is that because they were given the usual rider at the commencement of their evidence when objection's taken that it can't be used against them. But there's things said there to the Commission, which, as I say, give the Crown at least a possible scenario for where the defence might suggest that there's some innocent explanation about, not only the money in the unit, but they don't know anything about drugs.

That innocent explanation in terms of how it all connects up with the property is the father Jason Lee, for example, in his evidence at the Crime Commission indicated he'd received large amounts of money from — ’.

At this point, senior counsel for the first appellant interrupted and complained about the prosecution apparently having been provided with transcripts of evidence given before the Commission. The Crown Prosecutor reiterated that the prosecution would present a case which rebutted any innocent explanation about the money and the drugs. In the result, the Court ordered that the money laundering charge be tried separately from the drugs and firearms charges, but that the evidence in relation to the cash found at the premises could be led with respect to the drugs charges. No further discussion was had about the prosecution's possession of the transcripts of the appellants' evidence before the Commission. In fact, the transcripts were, at that time, part of the prosecution brief, a copy of which had been provided to the appellants' legal representatives.

11 On 16 March 2011, the first appellant was found...