High Court in Lee v The Queen restricts access to compulsory examination material

In Lee v The Queen ((Lee v The Queen [2014] HCA 20)) a High Court bench of five judges ((French CJ, Crennan, Kiefel, Bell and Keane JJ)) has today quashed convictions on the basis that the trial Crown Prosecutor, and his instructing solicitor, had access to transcripts of compulsory examinations of the accused. ((See [8] and [15]))

The Court unanimously held there had been a miscarriage of justice ((See [19])) and ordered a retrial. The re-trial will need to be conducted by a Crown Prosecutor and instructing DPP solicitor who have not had access to the compulsory examination transcripts. ((See [44]))

The bench’s history with this matter

The composition of the bench, and the fact it published a single judgment, is of note. The first appellant, Mr Do Young (aka Jason) Lee had previously been to the High Court on an issue relating to his compulsory examination; see Lee v New South Wales Crime Commission (([2013] HCA 39)).

The proposed examination was to be before the New South Wales Supreme Court in connection with litigation under the Criminal Assets Recovery Act 1990 (NSW) (CARA). Mr Lee had agitated, unsuccessfully, that the CARA did not permit examination that concerned or touched upon the subject matters of criminal charges that were pending against him.

Justices Bell and Kiefel were in the minority in the earlier case. Their Honours, unlike the majority, found that the CARA did not permit such questioning. ((See Lee v NSWCC [2013] HCA 39 at [220] – [221] per Kiefel J and [255] per Bell J))

Lee v NSWCC itself followed hot on the heels of the High Court’s decision in X7 v Australian Crime Commission. (([2013] HCA 29)) For more information on Lee v NSWCC and X7 v ACC see my article in Brief magazine.

The issue in Lee v The Queen and its wider relevance

Lee v R was on one level concerned with s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) (the NSW Act). According to the Court the section is a safeguard that “obliged the Commission to make a direction prohibiting publication of evidence before it, if not to do so might prejudice the person’s fair trial. If there was a risk of prejudice, s 13(9) required a direction to be made.” ((See Lee v The Queen at [28]))

Lee v R is also informative as to the approach the High Court might take to the use and disclosure of compulsory examination transcripts under other legislation, for example:

• the Proceeds of Crime Act 2002 (Cth),
• the Criminal Property Confiscation Act 2000 (WA),
• the Australian Crime Commission Act 2000 (Cth), and
• the Corruption and Crime Commission Act 2003 (WA).

Section 13(9) of the NSW Act is similar to s 29A(2)(a)(ii) of the Australian Crime Commission Act 2002 (Cth) and to ss 99(4)(b) and (5)(a)(ii) of the Corruption and Crime Commission Act 2003 (WA).

Section 13(9) of the NSW Act must be contrasted with:

• Section 266A of the Proceeds of Crime Act 2002 (Cth) (which provides no such safeguard, and indeed tends to suggest that disclosure to crown prosecutors is permitted), and
• the Criminal Property Confiscation Act 2000 (WA) which is silent on the question of whether examination transcripts may be shared with prosecutors. ((Section 70(1)(f) makes it an offence to disclose the contents of an examination order, but that is quite different to the content of the evidence given in examination pursuant to the order. Section 61(7) by its silence on the subject suggests that examination transcripts are not ordinary admissible in criminal proceedings; but again there is a difference between whether a prosecutor can tender an examination transcript and whether it can be disclosed to him or her. Section 108 also deals with admissibility.))

Even though disclosure of Proceeds of Crime Act 2002 (Cth) or Criminal Property Confiscation Act 2000 (WA) examination transcripts to a prosecutor might not infringe the words of those statutes, that would not answer the question of whether such a disclosure would give rise to a miscarriage of justice. In my opinion, in many, if not most cases, disclosure would result in a miscarriage finding. ((See generally the comments in Lee v The Queen at [32] to [34] and in particular [43].))

Indeed the Court held that “the publication to the DPP…was for a patently improper purpose, namely the ascertainment of the appellants’ defences.” The Court went on to frame the critical question: “not whether the publication was unlawful and wrongful. It is whether, as a result of the prosecution being armed with the appellants’ evidence, there has been a miscarriage of justice in the eyes of the law.” ((Lee v The Queen at [39])) Those observations do not turn upon the interpretation of any provision of the NSW Act and would govern an analogous situation under other legislation.

Those responsible for conducting compulsory examinations should establish protocols to quarantine the material obtained, particularly the transcripts, from criminal investigators and prosecutors. Failure to do so will result in considerable disruption to the criminal trial process. It will not however likely warrant a permanent stay of such a prosecution.

For an analysis of inferior courts’ application of Lee see my further blog post Applying Lee v the Queen.