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Supreme Court 18 August 2011

New South Wales Crime Commission v Jason Lee

[2011] NSWSC 1037

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW CRIMINAL ASSETS RECOVERY ACT 1990 PUBLICATION ORDER APPLICATION NON PUBLICATION ORDERS ACT NO CHANGE IN CIRCUMSTANCE

Citation: New South Wales Crime Commission v Jason Lee [2011] NSWSC 1037
Court: Supreme Court of New South Wales
Date: 18 August 2011
Judge: Garling J

Background

The NSW Crime Commission sought orders under s 31D(1)(a)(i) of the Criminal Assets Recovery Act 1990 compelling two defendants to submit to examination on oath concerning the first defendant's affairs and property interests. The defendants faced serious pending criminal proceedings, including drug and firearm charges on which they had already been convicted (but not yet sentenced), further drug-related charges due for trial in October 2011, and outstanding money laundering charges.

The Commission had previously brought an effectively identical application before RS Hulme J, who heard it on the merits, with evidence and submissions from all parties, and delivered judgment in February 2011. Hulme J refused the examination orders in respect of both defendants, finding that such examinations would prejudice their fair trial in the outstanding criminal proceedings. The Commission filed a summons seeking leave to appeal that refusal to the Court of Appeal.

Before the Court of Appeal proceedings were resolved, the Commission filed a fresh amended notice of motion seeking the same examination orders. The new motion added one element not present in the earlier application: a request for a non-publication order under s 7(b) of the Court Suppression and Non-publication Orders Act 2010, which would prevent the defendants' examination evidence from being published or disclosed outside the proceedings.

  • Whether the Commission's fresh application for examination orders constituted an attempt to re-litigate orders already refused by Hulme J, in circumstances where that refusal was on appeal to the Court of Appeal.
  • Whether the addition of a non-publication order application under s 7(b) of the Court Suppression and Non-publication Orders Act 2010 represented a meaningful change in circumstances sufficient to distinguish the current application from the earlier one.
  • Whether the current application constituted an abuse of process.

Decision

Garling J found that the examination orders sought in the amended notice of motion were in effectively identical form to those refused by Hulme J. The only difference between the two applications was that the Commission now sought a non-publication order alongside the examination orders, rather than relying solely on the examination regime itself.

The Court then examined what the Commission itself had submitted to the Court of Appeal in its pending appeal. In its supplementary summary of argument before the Court of Appeal, the Commission had expressly stated that the non-publication power under s 7(b) of the new Act was "relevantly the same" as the former s 62 of the Criminal Assets Recovery Act, and that the differences between the two provisions were immaterial to the case. It further submitted to the Court of Appeal that Hulme J would likely have refused the examination orders even if s 7(b) had been the source of the non-publication power.

Garling J concluded that this concession before the Court of Appeal was fatal to the Commission's argument that the current application was genuinely different in substance. Non-publication orders under the two provisions were relevantly identical. There had been no change in circumstances, and the addition of the non-publication application did not transform the motion into a materially distinct proceeding. Entertaining the application would amount to an abuse of process, and it was dismissed accordingly.

Orders Made

  • The application was dismissed.
  • The NSW Crime Commission was ordered to pay the costs of both defendants in relation to the motion.

Key Takeaways

  • A party cannot avoid the abuse of process doctrine by making a minor procedural addition to an application that has already been refused on the merits, where no material change in circumstances exists.
  • The Commission's own submissions to the Court of Appeal, acknowledging that the non-publication power under s 7(b) of the Court Suppression and Non-publication Orders Act 2010 was relevantly identical to the former s 62 of the Criminal Assets Recovery Act 1990, effectively foreclosed the argument that the amended motion raised a new or different issue.
  • Under the Criminal Assets Recovery Act 1990, examination orders may be refused where the examination would prejudice the fair trial of outstanding criminal proceedings against the person to be examined.
  • Filing a fresh application raising the same substantive orders as an earlier refused application, while that refusal is on appeal, is capable of constituting an abuse of process.
  • Costs followed the event: the Commission, as the unsuccessful applicant, was ordered to pay the defendants' costs of the motion.

Legislation and Cases Referenced

Legislation:
- Criminal Assets Recovery Act 1990 (NSW), including ss 12(1), 31D(1)(a)(i), 62
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 7(b)

Cases:
- D A Christie Pty Ltd v Baker [1996] 2 VR 582
- National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315
- Nominal Defendant v Manning (2000) 50 NSWLR 139