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Court of Criminal Appeal 9 March 2017

Lee v Attorney General for NSW

[2017] NSWCCA 27

DrugsFirearms & weapons
CRIMINAL LAW APPLICANTS SELF REPRESENTED SOME GROUNDS OF APPEAL MISCONCEIVED HOUSE V THE KING ERROR ESTABLISHED APPEALS BY ATTORNEY GENERAL ALLOWED.

Citation: Lee v Attorney General for NSW [2017] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 9 March 2017
Judge(s): Hoeben CJ at CL (primary judgment); Latham J and Price J (agreeing)

Background

Two accused persons (a father and son, referred to here as the first and second applicants) had been convicted at a joint trial in 2011 on drug supply and weapons charges arising from searches conducted in 2009. Their convictions were quashed by the High Court in 2014 after it found that the NSW Crime Commission had unlawfully released transcripts of compulsory examinations of the applicants to the Director of Public Prosecutions before trial, producing a miscarriage of justice. Retrials were ordered, and additional proceeds of crime charges were also pending.

Before the retrials could proceed, the applicants sought a permanent stay of the criminal proceedings in the District Court. The primary judge (Cogswell SC DCJ) refused the permanent stays but made two interlocutory orders: one prohibiting a Crown witness (referred to here as Mr Pak) from giving evidence in the retrial of the second applicant, and another temporarily staying all proceedings until the DPP paid the applicants' reasonable costs from the first trial.

The applicants sought leave to appeal the refusal of the permanent stays. The Attorney General cross-appealed the two interlocutory orders made in the applicants' favour.

  • Whether the primary judge erred in refusing to grant permanent stays of the criminal proceedings on the basis that no fundamental defect giving rise to unfair consequences had been demonstrated
  • Whether there was proper evidentiary or legal basis for the primary judge's order prohibiting Mr Pak from giving evidence in the prosecution of the second applicant
  • Whether the temporary stay pending payment of costs by the DPP was a valid exercise of the primary judge's discretion, or whether it involved an error of the kind identified in House v The King
  • Whether the primary judge should have recused himself on the basis of apprehended bias

Decision

Permanent stay applications (dismissed)

The Court of Criminal Appeal granted leave to appeal but dismissed both appeals. The primary judge had correctly applied the relevant legal framework, requiring the applicants to demonstrate a fundamental defect in the proceedings giving rise to unfair consequences. The Court found no such defect. Several grounds raised by the self-represented applicants were misconceived, and the primary judge's conduct did not give rise to a reasonable apprehension of bias on the part of a fair-minded lay observer.

Witness exclusion order (overturned)

The Attorney General's appeal against the order excluding Mr Pak from giving evidence in the second applicant's retrial was allowed. The primary judge had reasoned that Mr Pak had changed his position in pre-trial interviews conducted by the NSW Crime Commission, and that this shift was connected to his awareness of the second applicant's Crime Commission examination transcripts. The Court of Criminal Appeal found there was no evidentiary basis for either conclusion. There was no evidence that Mr Pak's position in fact changed, and no evidence that he had been made aware of the second applicant's Crime Commission evidence. Without that foundation, there was no proper basis for excluding him as a witness.

Temporary stay pending costs payment (overturned)

The Attorney General's appeal against the temporary stay was also allowed. The primary judge had stayed proceedings until the DPP paid the applicants' reasonable costs of the first trial. The Court found the primary judge failed to take into account a relevant consideration, namely that any fault on the part of the DPP was not of a kind that justified a temporary stay of criminal proceedings. This amounted to a House v The King error in the exercise of discretion. The Court also noted that, even if some form of temporary stay had been appropriate, ordering it conditional on payment of quantum-disputed costs would likely cause substantial further delay in proceedings already significantly delayed. The Court observed that, in the alternative, any temporary stay should have been framed as operating until the DPP gave an undertaking to pay reasonable costs, not until those costs were actually paid.

Orders Made

  • The non-publication order of Cogswell SC DCJ made on 22 October 2015 to be continued until further order of the Court
  • Leave granted to both applicants to appeal, but both appeals dismissed
  • The Attorney General's appeal against the order prohibiting Mr Pak from giving evidence in the prosecution of the second applicant allowed; that order set aside
  • The Attorney General's appeal against the temporary stay of criminal proceedings pending payment of costs by the DPP allowed; that order set aside

Key Takeaways

  • An order excluding a prosecution witness from giving evidence requires a sound evidentiary foundation. The Court of Criminal Appeal found that inferring witness contamination or a changed position without supporting evidence cannot justify such a significant interlocutory order.
  • A temporary stay of criminal proceedings linked to payment of disputed costs by the DPP will not be upheld where the primary judge failed to account for the nature of the DPP's fault and the likely delay such a condition would create.
  • House v The King error remains the applicable standard for appellate intervention in discretionary decisions: the Attorney General succeeded here by demonstrating that a relevant consideration was left out of account, not merely that the appellate court would have exercised the discretion differently.
  • In dismissing the permanent stay applications, the Court confirmed that quashed convictions and a High Court-ordered retrial do not, without more, constitute a fundamental defect in proceedings sufficient to justify a permanent stay.
  • Apprehended bias requires more than dissatisfaction with a primary judge's rulings. The Court found that the applicants' complaints about the primary judge's conduct did not meet the objective standard of a fair-minded lay observer reasonably apprehending a lack of impartiality.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5F(2) and 5F(3)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), ss 193B(2), 249C and 307A
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Assets Recovery Act 1990 (NSW)
- Director of Public Prosecutions Act 1986 (NSW), s 29
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases
- Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455
- Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; 232 A Crim R 337
- House v The King [1936] HCA 40; 55 CLR 499
- Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
- Johnson v Johnson [2000] HCA 48; 201 CLR 488
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
- Williams v Spautz [1992] HCA 34; 174 CLR 509
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- R v Sellers; R v McCarthy [2015] NSWCCA 76; 89 NSWLR 155
- Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302
- SD v New South Wales Crime Commission [2013] NSWCA 48; 84 NSWLR 456
- Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625
- Bienstein v Bienstein [2003] HCA 7; 195 ALR 225