Inferior courts have now begun to consider and apply Lee #2. The results have been disparate.
Zhao & Jin v Commissioner of the Australian Federal Police
On the strength of Lee #2, the Victorian Court of Appeal in Zhao & Jin v Commissioner of the Australian Federal Police 1 (considering the Federal Proceeds of Crime Act 2002) has ordered a halt to a number of confiscation proceedings because the defendants are facing related criminal charges.
The Court of Appeal said at :
“…the High Court has spoken unanimously in [Lee #2] in terms which imply that, where the subject matter of forfeiture proceedings is substantially the same as the subject matter of criminal proceedings, unless the forfeiture proceedings are stayed until completion of the criminal proceedings, the Crown may be advantaged in a manner which fundamentally alters its position vis-à-vis the accused and therefore renders the trial of the criminal proceedings unfair.”
Their Honours gave no pinpoint citation for that summary of Lee #2. With the greatest of respect I do not agree that the proposition contended for can be found in Lee #2. More significantly, I believe it is directly contrary to Lee #1.2
At  their Honours said, after discussing Lee #1 and Lee #2:
“…given that Lee No 2 is the latest decision of the High Court in point, and a unanimous decision of five members of the Court including French CJ, Crennan and Keane JJ, we consider that we are bound to follow and apply it as best we can.”
If their Honours were suggesting that Lee #2 is somehow inconsistent with Lee #1, again I would with the greatest of respect suggest that there is nothing in the text of Lee #2 to support that proposition.
More importantly, I would suggest that the leading authorities on the question of whether a stay of civil proceedings is to be granted pending conclusion of a criminal trial are X7 v Australian Crime Commission  HCA 29 and Lee #1. The focus of Lee #2 is quite different; it assumes that where confiscations proceedings run, the evidence obtained in them must be quarantined.
On 12 September 2014 the High Court (French CJ & Bell J) granted special leave to the Commissioner of the AFP to appeal the decision in Zhao.3
Postscript: On 12 February 2015 the High Court unanimously dismissed the AFP’s appeal against the Court of Appeal’s decision in Zhao. I have written a new post on the High Court’s judgment in AFP v Zhao & Jin.
Bartlett v The Queen
In stark contrast to Zhao, in Bartlett v The Queen4, a single Judge of the Supreme Court of Western Australia held that a criminal trial would go ahead notwithstanding the Crown Prosecutor was personally in possession of a transcript of an examination of the accused, conducted under the Australian Crime Commission Act (the same Act that was the subject of the High Court’s decision in X7).
In Bartlett v The Queen the Court referred at  to the decision in Seller & McCarthy.5 In that case the New South Wales Court of Appeal held no actual unfairness had resulted6 from the fact that some staff within the DPP, but not Crown Counsel and not their instructors,7 had read the transcript of an ACC examination of the accused. The High Court refused special leave.8
The NSW Court of Appeal decision in Seller pre-dated the High Court’s decision in X7 by several months. In my view the focus of the NSW Court of Appeal in Seller on what has been termed “practical unfairness” must be treated with extreme caution. Not surprisingly, the NSW Court of Appeal’s approach in Seller bears similarities to its approach in Lee v The Queen (which on appeal to the High Court became Lee #2). The mere fact that special leave was refused in Seller does not amount to a High Court endorsement of the Court of Appeal’s decision. The High Court was unambiguous and unanimous in Lee #2, saying:
“ These appeals do not fall to be decided by reference to whether there can be shown to be some “practical unfairness” in the conduct of the appellants’ defence affecting the result of the trial. This is a case concerning the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants’ trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession.”
In my view the Court in Bartlett v The Queen was wrong to rely on Seller as it appears to have.
Perhaps more significantly the Court also appears to have:
- Rolled up the consideration of the statutory requirements of s 25A(9) of the ACC Act with the questions of whether the trial will be “altered in a fundamental respect.” 9
- Implicitly found a distinction between s 25A(9) of the ACC Act and s 13(9) of the New South Wales Crime Commission Act 1985 which was considered in Lee #2. The judgment in Bartlett v The Queen speaks of the fact that s 13(9) did not ‘authorise’ the disclosure in Lee #2 and describes that as a point of difference.10 His Honour suggests s 25A(9) of the ACC Act did permit the disclosure to the DPP of Mr Bartlett’s and his co-accused’s examination. I question the basis for that distinction. The two sections are remarkably similar.11 In my view the fact that the Lees were examined shortly before being charged whereas Bartlett was examined nearly 2 years prior, can hardly provide a sound jurisprudential basis for a different outcome.
The Court in Bartlett v The Queen did, rightly in my view, observe:
“ A question may arise as to how far the isolation and the quarantine should reach. Should it reach to police officers or investigators who have knowledge of the results or contents of the compulsory examinations and who may be witnesses at the retrial? Should it reach to investigators or prosecutors involved in the investigation or prosecution of suspected offences of persons other than the examinees who may have been involved in or connected with the offences alleged against these examinees? Should it extend to clerical staff and/or senior officers of the DPP who became aware of the contents of the compulsory examinations who, in the case of senior staff, may be responsible for the oversight of the prosecution being conducted by the new team? It is true that these questions are, at the moment, hypothetical and in some instances may be difficult to resolve.”
Bartlett’s trial (which was in fact a re-trial) proceeded. The Jury were unable to reach a verdict. On 26 September 2014 the CDPP discontinued the prosecution. Thus the decision cannot now be the subject of appellate review.
Where are we now?
Perhaps despite Zhao and Bartlett v The Queen, I suggest:
- Lee #1 stipulates that, where Parliament uses sufficiently clear words, a statute can abrogate the right to silence for non-prosecutorial purposes (such as confiscations). As X7 and Lee #1 make clear, this is always a matter of construction of the relevant statute; and
- Lee #2 provides that, notwithstanding any abrogation, the right to a fair trial must be protected and the product of the other process ought not be disclosed to the prosecution. The relevance of the particular statute is diminished at the point of considering Lee #2 factors.
In summary it seems to me:
- the Victorian Court of Appeal in Zhao applied too much weight to Lee #2, when the question before it was governed by X7 and Lee #1; and
- The WA Supreme Court in Bartlett v The Queen applied too much weight to X7 and Seller, and to a lesser extent Lee #1. It seems to me insufficient weight was given to Lee #2 which I suggest governed the issue before the Court. It is not entirely clear why, but perhaps the Court focused on the fact that X7 and Seller both concerned the very statute the Court was dealing with.
In QAAB v Australian Crime Commission  FCA 747, Logan J not surprisingly in my view, dismissed an attempt to stop an examination by the Australian Crime Commission of a person who might in the future “become “more of a focus” for an investigation directed to his being charged” but who had not at that point been charged. His Honour’s judgment addresses X7, Lee #1 and Lee #2.
In A v Corruption & Crime Commission  HCATrans 132 the High Court refused special leave on an application that sought to agitate both Lee and X7 issues.
On 8 October 2014 in R v Jacobson (Ruling No 4) Kaye J sitting at first instance in the Supreme Court of Victoria held that Lee #2 did not prevent the DPP from having access to the transcript of an examination of the accused conducted by the Australian Securities Investments Commission under s 19 of the ASIC Act. His Honour placed some weight on Bartlett and also upon the pre-Lee decision of Catena.12 His Honour concluded13 that there had been no practical prejudice or unfairness. Again in my view that misstates Lee #2.
-  VSCA 137
- Lee v New South Wales Crime Commission  HCA 39 per French CJ at  and ; Crennan J at , , ,  and ; Gageler & Keane JJ at , ,  and .
-  HCATrans 202. The hearing of the appeal has been listed for 4 December 2014. See generally http://www.hcourt.gov.au/cases/case_m92-2014.
-  WASC 277
- R v Seller; R v McCarthy  NSWCCA 42.
- At .
- At .
-  HCATrans 204.
- To use the High Court’s words in Lee # 2, above.
- B v The Queen at  and ; contrast Lee #2 at  and .
- The text of the now repealed s 13(9) can be found at  of the High Court’s judgment in Lee #2.
-  VSC 508 at  – .
- At .