Lee v NSW Crime Commission [2013] HCA 39

Today the High Court, by majority, dismissed an appeal from the Court of  Appeal of the Supreme Court of New South Wales, which had ordered that the appellants be compulsorily examined under oath before a registrar of the Supreme Court of New South Wales pursuant to the Criminal Assets Recovery Act 1990 (NSW).

The Original Case

The appellants were each charged with drug and firearm offences and the first appellant was also charged with an offence of money laundering. The New South Wales Crime Commission applied for orders from the Supreme Court to examine both appellants under oath concerning particular affairs.

A judge of the Supreme Court declined to make the orders sought by the Commission, holding that the risk such examinations posed to the appellants’ pending criminal trials may not be avoided by provisions of the Act.

The High Court Appeal

In the High Court, the appellants argued that the provisions of the Act should not be construed as conferring power to order the examination on oath of a person against whom criminal proceedings have been commenced but not completed, to the extent that the subject matter of the examination would overlap with the subject matter of those proceedings.

The High Court, by majority, dismissed the appeal. The potential prejudice to the fair trial of the examinee was mitigated by limitations on how information elicited from an examination could be used in criminal proceedings and by the discretion of the Supreme Court to decline to make an examination order in exercise of its inherent power to prevent the misuse of its processes.

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