Breach of Non-publication Provision: Do Young (aka Jason) Lee v R; Seong Won Lee v R [2014] HCA 20
Wednesday 21 May 2014 @ 12.10 p.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research
In the case, Do Young (Aka Jason) Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20 hand down 21 May 2014, the High Court of Australia has allowed two appeals from a decision of the NSW Supreme Court of Criminal Appeal (see Lee Do Young v Regina; Lee Seong Won v Regina [2013] NSWCCA 68 (3 April 2013)), which had upheld the convictions of the two appellants on drug and firearms offences on the basis that there had not been a miscarriage of justice within the meaning of the Criminal Appeal Act 1912 (NSW) section 6(1) of which provides:
6. Determination of appeals in ordinary cases
(1) The court on any appeal under section 5 (1) against conviction shall allow the
appeal if it is of opinion that the verdict of the jury should be set aside on the
ground that it is unreasonable, or cannot be supported, having regard to the evidence,
or that the judgment of the court of trial should be set aside on the ground of the
wrong decision of any question of law, or that on any other ground whatsoever there
was a miscarriage of justice, and in any other case shall dismiss the appeal; provided
that the court may, notwithstanding that it is of opinion that the point or points
raised by the appeal might be decided in favour of the appellant, dismiss the appeal
if it considers that no substantial miscarriage of justice has actually occurred.
(2) . . .
(3) . . .
Background
A father and son (the appellants) had been the subject of an investigation by the NSW Crime Commission and pursuant to powers given by the New South Wales Crime Commission Act 1985 (NSW) (NSWCC Act) had been summoned by the Commission to give evidence to the NSW Crime Commission.
Section 13(9) of the NSWCC Act provided that:
The Commission may direct that:
(a) any evidence given before it,
(b) the contents of any document, or a description of any thing, produced to the Commission
or seized pursuant to a search warrant issued under section 11,
(c) any information that might enable a person who has given or may be about to give evidence
before the Commission to be identified or located, or
(d) the fact that any person has given or may be about to give evidence at a hearing,
shall not be published, or shall not be published except in such manner, and to such
persons, as the Commission specifies, and the Commission shall give such a direction
if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.
Note: now repealed see section 87 of the Crime Commission Act 2012 No 66 effective from 5 October 2012)
The provisions of section 13(9) required that the Commission make a direction prohibiting the publication of evidence given in hearings before it where publication might prejudice the fair trial of a person who may be charged with an offence.
One appellant gave evidence on two occasions and was subsequently charged with various drug and firearms offences while the other appellant gave evidence on one occasion and had been charged with firearms offences and a charge relating to a drug offence was “imminent”.
The transcripts of the appellants' evidence given before the NSW Crime Commission were unlawfully published to members of the NSW Police Force and to officers of the Director of Public Prosecutions (the DPP) before the appellants were tried jointly on 16 March 2011. Following their trial, the appellants were convicted of various drug and firearms offences.
NSW Supreme Court of Criminal Appeal
On appeal the appellants sought to argue that there had been a miscarriage of justice resulting from the prosecution's possession and possible use of the appellants' evidence given before the NSW Crime Commission. The NSW Supreme Court of Criminal Appeal dismissed the appeals (see [2013] NSWCCA 68 (3 April 2013)).
The High Court
The appellants sought and obtained special leave to appeal to the High Court.
In its unanimous decision the High Court found that the purpose of section 13(9) of the NSWCC Act was to protect the fair trial of a person who may be charged with offences, and that purpose supports the fundamental principle of the common law referred to in, X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29, namely; that the prosecution is to prove the guilt of an accused person. See further paragraph 51 of the High Court judgment as follows:
51. The circumstances of this case involve the wrongful release and possession of evidence. However, its effects cannot be equated with the use of evidence illegally or improperly obtained. The question whether such evidence should, as a matter of discretion, be admitted does not arise. Clearly, s 18B(2) of the NSWCC Act provided that the appellants' evidence before the Commission was inadmissible at their trial. Rather, these appeals concern the effect of the prosecution being armed with the appellants' evidence. It is not necessary to resort to questions of policy to determine whether a miscarriage of justice has occurred. What occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution vis-à-vis the accused. There was no legislative authority for that alteration. Indeed, it occurred contrary to the evident purpose of s 13(9) of the NSWCC Act, directed to protecting the fair trial of examined persons.
In the present case, the High Court found that purpose was not met and as a consequence the trial of the appellants “differed in a fundamental respect from that which our criminal justice system seeks to provide and amounted to a miscarriage of justice" within the meaning of section 6(1) of the Criminal Appeal Act 1912 (NSW), as a result the High Court has quashed the appellants' convictions and ordered that a new trial.
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Sources:
- Do Young (Aka Jason) Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20 (21 May 2014)
- Lee Do Young v Regina; Lee Seong Won v Regina [2013] NSWCCA 68 (3 April 2013) [ see also Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168 (28 September 2012)]
- Criminal Appeal Act 1912 (NSW) and New South Wales Crime Commission Act 1985 (NSW) as reported in the TimeBase LawOne Service.
