New South Wales Crime Commission v Jason Lee

[2012] NSWCA 276

NSW Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Recovery of proceeds of crime
3. › Examination orders
4. › Whether examination order may be made where criminal charges pending against examinee
5. › Whether examination would interfere with administration of justice in criminal proceedings
6. › Whether procedural protections available to prevent abuse of power
7. › Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63
1. Statutory Interpretation
2. › Criminal Assets Recovery Act 1990 (NSW)
3. › Examination orders
4. › Whether power to order examination limited by general law principles relating to fair trial
5. › Abrogation of privilege against self-incrimination
6. › Whether s 63 precludes reliance on pending criminal proceedings as ground for refusing examination order
7. › Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63
1. Appeal
2. › Civil
3. › Appeal from discretionary decision
4. › Whether Court of Appeal should intervene where it would have exercised discretion differently
5. › Whether powers under Supreme Court Act 1970 (NSW) s 75A constrained by House v The King
6. › House v The King [1936] HCA 40
1. Practice and Procedure
2. › Primary judge refused but did not dismiss application
3. › Whether oversight
4. › Whether parties treated application as dismissed
5. › Whether Court of Appeal should make order which should have been made
6. › Whether order should take effect on date of primary judge's orders
7. › Uniform Civil Procedure Rules 2005 (NSW), r 36.4(3)

Quick Take

The existence of pending criminal proceedings is not, of itself, a basis for refusing to make an examination order under s 31D of the Criminal Assets Recovery Act 1990 (NSW). Section 63 of the Act precludes reliance on pending criminal proceedings as a ground for resisting or delaying examination on any procedural basis. Procedural safeguards including suppression orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) and the inherent powers of the Court are available to address any prejudice to criminal proceedings arising from the examination. The Court of Criminal Appeal's suggestion in R v Masters that its obligation to follow Court of Appeal decisions was merely to have 'great regard' for them is disapproved.