Lee v Attorney General for NSW

HOEBEN CJ at CL:

The cross-appellant pursuant to s 5F(2) of the Criminal Appeal Act has appealed against two orders made by Cogswell DCJ in those judgments. Those orders relate to the prohibition of Brendan Pak from giving evidence in the prosecution of Seong Won Lee and a stay of certain criminal proceedings until the DPP pays the reasonable costs of both applicants in relation to what has been described as the “first trial”.

It is the Crown case that on 25 February 2009 police stopped a vehicle that was travelling at speed on General Holmes Drive, Mascot. Mr Jason Lee was a passenger in the rear of the vehicle. He produced from his pocket a large amount of cash. A search of the vehicle located, amongst other things, cash, a firearm and $175,000 worth of casino chips. Jason Lee and a co-accused were charged with offences. Jason Lee later voluntarily participated in an interview with Police.

Arising from the vehicle stop, Jason Lee was indicted on two counts to the following effect:

On 7 December 2009 Police executed a search warrant at an apartment in Lachlan Street, Waterloo. During the search, Police discovered a number of firearms and firearms accessories, a quantity of white powder (later determined to contain pseudoephedrine) and $1,147,000.00 in cash. Some of these items were found in the laundry of the apartment; others were found in the locked main bedroom, together with papers in the name of Jason Lee.

Jason Lee was charged with offences relating to the weapons, drugs and cash found in both the laundry and the bedroom of the apartment. He was also charged, on 13 May 2010, with two counts of supplying prohibited drugs (contrary to ss 25(1) and 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) respectively) following analysis of washing powder found at the Waterloo unit. At the first trial, the offences relating to the cash and casino chips were severed from the indictment. However, the cash found was admissible in relation to the drug offence and was led at the first trial.

In that first trial, in March 2011, Jason Lee was convicted on all counts relating to items found in the bedroom and of supplying the drugs found in the laundry. He was acquitted of the firearms and weapons charges, but found guilty of possessing a pistol, being a six chamber revolver.

Seong Won Lee, who lived in the apartment at the time and arrived during the execution of the warrant, was charged with several offences relating to the weapons and drugs found in the laundry. At the joint trial with his father in March 2011, he was convicted on all counts relating to the weapons and of knowingly taking part in supplying the drugs.

Judge Solomon sentenced both applicants to lengthy prison terms. Jason Lee was sentenced to 13½ years imprisonment with a non-parole period of 9½ years. Seong Lee was sentenced to 8½ years imprisonment with a non-parole period of 5½ years.

Jason Lee is yet to face trial on the proceeds of crime charge relating to the cash of over $1 million dollars found in the unit and the cash and casino chips found in the car.

Before the joint trial each of the applicants had been compulsorily examined by the NSW Crime Commission (Commission). Jason Lee was examined on 26 November 2009 and 1 December 2009. Seong Lee was examined on 16 December 2009.

The applicants appealed to the Court of Criminal Appeal against their convictions. An important issue in the appeal was the conduct of the Commission. How it became an issue is described by Basten JA in Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; 232 A Crim R 337:

The Court of Criminal Appeal dismissed the applicants’ appeals concluding that the release by the Commission of the interview transcripts and Jason Lee’s documents to the Director of Public Prosecutions (DPP) did not produce any practical unfairness resulting in an unfair trial.

The applicants appealed against their convictions to the High Court again submitting that their convictions involved a miscarriage of justice because the transcript of their evidence before the Commission had been released to the DPP before the trial. The applicants were successful. The High Court found that each applicant’s “trial was altered in a fundamental respect by the prosecution having the appellants’ evidence before the Commission in its possession” and that a miscarriage of justice had occurred (Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455). The High Court quashed the convictions and ordered a retrial for each applicant.

In the Court of Criminal Appeal proceedings Basten JA conveniently summarised the particular counts faced by each of the applicants arising out of the first trial and the outcome as follows:

Arising from the search of the Waterloo premises, Jason Lee faces two indictments. The first indictment, which relates to the retrial (trial 1), contains counts to the following effect:

The second indictment against Jason Lee contains one offence (trial 2), namely:

Jason Lee also faces two counts of knowingly being in possession of the proceeds of crime (Crimes Act), s 193B(2)) in respect of (i) $95,905 cash; and (ii) $175,000 worth of Star City casino chips found following the vehicle stop on 25 February 2009.

Arising from the search warrant of the Waterloo premises, the indictment in respect of Seong Lee contains five counts to the following effect (Trial 1):

Before Cogswell DCJ, each of the applicants filed a motion asking the court to permanently stay their prosecution on the charges in trial 1. In addition, Jason Lee sought a permanent stay of his prosecution on the two indictments on which he has not yet faced trial – the proceeds of crime charges from the car stop on 25 February 2009 and from the Waterloo unit on 7 December 2009. The applicants also sought an order that the DPP pay their appeal costs. If they did not obtain a permanent stay, the applicants sought a series of alternative remedies.

The proceedings before Cogswell DCJ were conducted on behalf of the State by the NSW Attorney General. This was because the DPP had requested under s 29 of the Director of Public Prosecutions Act 1986 (NSW) that the Attorney General exercise the DPP’s function in relation to these applications. It was made clear to his Honour that the DPP would be conducting the prosecutions if they proceeded.

The evidence before Cogswell DCJ was relatively uncontroversial. The applicants identified the transcripts of their compulsory examinations which they said were unlawfully provided to other people by the Crime Commission and documents which they both compulsorily produced at those examinations. There was evidence from members of the Commission and persons who had been involved with the first trial, in particular Ms Garrity, who was the solicitor who had the conduct of the matter on behalf of the DPP.

His Honour was told how the evidence against the applicants would be presented if the trials were allowed to proceed.

The trials of the applicants, in respect of the firearms and drug offences, are based on the fact that firearms and drugs were found during the execution of a search warrant at the Waterloo premises associated with each of them, as well as other incriminatory documents and circumstances. For example, in the case of Jason Lee, his fingerprints were found on incriminating items, including a document entitled “How to Cook Meth”, which was in the locked main bedroom in the unit that also contained related documents in his name. Some of the firearms and large quantities of drugs and cash were located in that room. The Crown relies also upon the evidence of Brendan Pak, who gave evidence at the first trial that implicated the applicants in the supply of pseudoephedrine (trial 1). Judge Cogswell in considering the availability of independent sources of evidence, not said to be derived from compulsory obtained material, concluded “[t]here is an independently strong case against both of the accused” (August judgment at [93]).

The further trial of Jason Lee on proceeds of crime charges (trial 2) similarly relies principally on the fact of large quantities of cash found at the Waterloo premises during the search. The further trial of Jason Lee (trial 3) on two counts of proceeds of crime charges similarly relies on the finding of large quantities of cash and Star City Casino chips in the vehicle stop on 25 February 2009.

In the trials that Jason Lee faces the Crown does not propose to adduce evidence of what Jason Lee said when examined by the Commission or to tender documents that Jason Lee produced to the Commission. Similarly, in respect of the trial that Seong Lee faces, the Crown does not propose to adduce evidence of what Seong Lee told the Commission. A completely different legal team will present the Crown case on behalf of the DPP.

By amended notices of motion, dated 6 July 2015, each applicant sought a permanent stay of the criminal proceedings brought against him.

Each applicant also sought alternative orders in the event that the permanent stay was not granted, and also an order for a temporary stay of proceedings pending payment by the DPP of the reasonable costs of their first criminal trial, the appeal to the CCA, the special leave application and the appeal to the High Court of Australia ("the temporary stay application").

The hearing of the motions took place, before Cogswell DCJ on various dates in October 2015, November 2015, April 2016 and June 2016. For the most part, the applicants were represented by counsel and instructing solicitors before his Honour.

On 29 August 2016 his Honour delivered judgment on the motions. His Honour refused the applications for a permanent stay of the criminal proceedings against each applicant. His Honour concluded that each applicant had not demonstrated that there was a fundamental defect giving rise to irremediable unfair consequences. His Honour further held that in any balance of competing public interest, the scales were tipped "decisively" against a permanent stay for Jason Lee, and that, although not as decisively, the scales were "clearly tipped" against a permanent stay for Seong Lee.

In refusing the applications for a permanent stay, his Honour referred to well-established authority to the effect that the granting of a permanent stay was a rare and exceptional remedy, available only where no alternative means are available to remedy the defect alleged, and that the granting of a permanent stay is tantamount to the provision of a continuing immunity from prosecution (August judgment at [43] – [50]).

Subsequent to the judgment of Cogswell DCJ this Court in Romolo v R [2016] NSWCCA 240 recently emphasised the exceptional nature of the remedy of a permanent stay. In Romolo Button J (Hoeben CJ at CL and N Adams J agreeing) said:

Judge Cogswell rejected the applicants’ claims for alternative orders in their notices of motion. An exception was an order to the effect that Mr Brendan Pak not be permitted to give evidence at the trials. His Honour ordered ultimately that “Brendan Pak be prohibited from giving evidence in the prosecution of the applicant Seong Lee.” The Attorney General accepted that the effect of this order is to prevent Brendan Pak giving evidence at any joint trial of Seong Lee and Jason Lee.

Judge Cogswell also acceded at least in part to the applicants’ claim for a temporary stay of criminal proceedings pending the DPP paying the applicants’ reasonable legal costs. His Honour ordered that:

Both the order preventing Brendan Pak from giving evidence and the order imposing a temporary stay pending payment of legal costs by the DPP are the subject of what is in effect a cross-appeal by the Attorney General.

The applicants have each filed notices of appeal/applications for leave to appeal dated 14 October 2016 and 7 December 2016. In addition, the applicants did on 13 January 2017, file joint written submissions in support of their applications. Pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, the applicants need leave from this Court in order to appeal against the order made by Judge Cogswell refusing to permanently stay the criminal proceedings against each of them.

The written submissions of 13 January 2017 do not appear to have been prepared by a lawyer. When the matter came before the Court for the hearing of the applications for leave to appeal on 20 February 2017 the applicants were in attendance but were not legally represented.

In their written submissions, the applicants assert that they are representing themselves because they have “no legal fees available”.

On that issue, the Attorney General advised that on 11 November 2016 the applicants indicated to Judge Cogswell that Legal Aid had been refused on the basis that they had assets, in particular a million dollar property which they said they were having difficulty selling (Transcript, 11 November 2016). On 11 November and 23 November 2016 Judge Cogswell advised the applicants to arrange to have any lawyer they may want to engage, contact the DPP to ascertain whether an advance could be provided to them from the funds that would be needed by the DPP to discharge the temporary stay and for the purposes of funding their legal representation for their applications to the Court of Criminal Appeal.

The Attorney General further advised the Court that on 22 November 2016 the Office of the DPP had sent an email to the applicants indicating that the Director would consider a request to advance funds if a letter from lawyers representing them, or indicating an interest in representing them, was received together with an estimate of their costs for the proceedings in the Court of Criminal Appeal. At the further mention of the matter before Judge Cogswell on 23 November 2016 attended by the applicants, a solicitor from the Office of the DPP confirmed that offer. The Attorney General advised this Court that as of the date of the hearing of the appeal, the DPP had not received any such request by any lawyers indicating an interest in representing the applicants. This was confirmed to the Court by the applicants.

It would be fair to say that the applicants’ written submissions are difficult to understand. There appear to be five grounds of appeal.

This ground appears to be directed to the proceeds of crime charges against Jason Lee arising out of the vehicle stop on 25 February 2009. Those charges were the subject of a stay granted on 16 February 2012 by a Magistrate in the Local Court before committal. Subsequently, on 3 May 2012, the DPP filed an ex officio indictment in respect of those charges in the District Court. In the proceedings before Judge Cogswell no point was taken by the applicants' counsel that these proceeds of crime charges were not properly before the District Court.

By Ground 1, the applicants alleged that the DPP has, in some manner, "misled" the Court and/or the applicants with "false documents" and "false information" and has contravened ss 249C and 307A of the Crimes Act 1900 and s 67 of the Evidence Act (SA) 1929 (AWS at [10], [16], [17], [19] – [20]).

At AWS [16], the applicants submitted that the proceeds of crime charge had been the subject of a settlement with the Commission. It was therefore wrong and the DPP was seeking to mislead the court, by listing that matter for hearing in August 2017.

This ground of appeal is based on a misunderstanding. Jason Lee has not yet faced trial in respect of the proceeds of crime charges. On 25 November 2016 the District Court listed those matters for trial on 21 August 2017 with a 10 day estimate (the proceeds of crime charges arising out of the execution of the search warrant are listed for trial on 4 September 2017.)

The reference by the applicants to a settlement appears to be a reference to civil proceedings in the Supreme Court brought by the Commission against the applicants under the Criminal Assets Recovery Act 1990 (NSW) (CARA), which were the subject of a settlement on 30 October 2015. A copy of the consent orders made by the Supreme Court (Campbell J) in those proceedings on 30 October 2015 is at AB, vol 15, tab 118. The Commission is an entity separate from the DPP and is not empowered to discontinue criminal proceedings that are being prosecuted by the DPP. The consent orders that the Supreme Court made on 30 October 2015 relate only to the matters under the CARA and have nothing to do with the proceeds of crime criminal charges which have been fixed for hearing on 21 August 2017.

Ground 1 has not been made out.

Ground 2 appears to be directed at Judge Cogswell's finding that the conduct of the ODPP committals solicitor, Ms Victoria Garrity (in requesting from the Commission, via inducted staff, copies of the transcript of the compulsory examinations of Seong Lee and Jason Lee) was not done with any improper motive. It is not clear in that context how any evidence was altered. There is also a bare assertion that the DPP has contravened s 317 of the Crimes Act without any particularisation.

Judge Cogswell heard evidence from Ms Garrity, who was subject to cross-examination. As a result, his Honour made no adverse findings about her conduct and regarded it as "understandable" and not done with any improper motive. Those findings were open to his Honour and nothing said by the applicants in their written submissions has placed that conclusion in doubt.

This ground of appeal has not been made out.

The applicants note that after his Honour gave judgment on 29 August 2016, the Attorney General requested clarification of the orders. The applicants submit that what his Honour did was not to clarify the orders which he had made but to make different orders. The applicants further submit that they have been disadvantaged by the change in the orders in that a trial date involving Mr Jason Lee has been set without them having received any money by way of legal costs and that Brendan Pak, as a result of the change in the orders, will unfairly be able to give evidence in the proceedings against Jason Lee.

The chronology of what occurred makes it clear that this ground of appeal has not been made out.

On 29 August 2016 Judge Cogswell delivered the principal judgment and the orders then made by him were as follows:

Following delivery of judgment, at the request of the Attorney General, the matter was listed for mention on Thursday, 29 September 2016 in order to seek clarification of certain aspects of his Honour's orders. A transcript of the mention on 29 September 2016 is at AB, vol 3, tab 57. Although the applicants were not legally represented, Ms Younes, a solicitor, appeared for them on what was said to be an amicus basis.

Counsel for the Attorney General raised four matters on which clarification was sought, and agreed to prepare a written note about those matters for service on the applicants. His Honour made directions to the following effect:

Consistent with those directions, on 10 October 2016 the Attorney General filed and served a five page note in connection with the matters raised at the mention. A copy of that Note is at AB, vol 1, tab 34. On 26 October 2016 the applicants served a five page note entitled “Respondents Note” dated 25 October 2016. A copy of the applicants’ note is at AB, vol 1, tab 29.

On 4 November 2016 the matter was before Judge Cogswell at which time his Honour listed it for 11 November 2016 to determine outstanding issues. His Honour indicated to the applicants that on that occasion they could provide an oral response (in addition to their written note already served) to the Attorney General's note of 10 October 2016.

On Friday, 11 November 2016 the matter was before Judge Cogswell. Counsel for the Attorney General relied upon the contentions set out in the note dated 10 October 2016. Each applicant made oral submissions to his Honour.

Judge Cogswell then delivered an ex tempore judgment which addressed three main matters.

At a final mention on 23 November 2016, his Honour provided a sealed note of the final form of the Orders made, as follows:

The Attorney General advised this Court that without any involvement by Judge Cogswell, on 25 November 2016 the District Court listed the separate trials involving Jason Lee arising out of the vehicle stop in February 2009 and the execution of the search warrant in December 2009. The trials are to be back-to-back with the vehicle stop charges listed for 21 August 2017 and the proceeds of crime charge listed for 4 September 2017, each with a 10 day estimate. The District Court has not listed for hearing the joint trials of Jason Lee and Seong Lee (comprising the outstanding charges that were the subject of the first District Court trial). The Attorney General understood that the District Court will not do so until judgment is handed down by this Court in relation to this application.

An examination of the transcripts and the submissions made by the parties between 29 August and 23 November 2016 shows nothing untoward occurring. The applicants were given an opportunity to make submissions and did so, both in writing and orally. There was no unfairness to the applicants in either the process followed or the conclusions arrived at by his Honour.

This ground of appeal has not been made out.

The applicants’ submissions under this ground appear to have nothing to do with the decision of Cogswell DCJ. They are directed to what is characterised as unfair behaviour on the part of the Commission leading to a settlement of the CARA proceedings between it and the applicants which disadvantaged the applicants. The applicants submit that the conduct of the Commission amounted to duress and that in all the circumstances, the settlement was unfair. There is also a submission (by way of bare assertion and not supported by evidence) that the transcripts of the compulsory examinations before the Commission have been tampered with to the disadvantage of the applicants.

The Attorney General and the DPP were not involved in the CARA proceedings. A complaint about the settlement of those proceedings is not relevant to whether Judge Cogswell erred in refusing to grant a permanent stay of the criminal proceedings brought against the applicants.

To the extent that the submissions concerning the transcripts of the compulsory examinations being tampered with are relied upon by the applicants, the Court has not been directed to any evidence to substantiate that allegation. Such a suggestion was not made at any time in the proceedings before Judge Cogswell when the applicants were legally represented. No questions were asked of the Commission witnesses to that effect.

This ground of appeal is irrelevant and in any event, has not been made out.

The applicants submit that Judge Cogswell should have recused himself from hearing the applicants’ motions on the basis that “his family members were involved at the NSW Crime Commission”. In their submissions, the applicants go no further than that bare assertion, however, I assume that the applicants wish to incorporate as a basis for that submission the evidence and argument which was before his Honour on this issue and in relation to which his Honour gave judgment refusing the applications on 26 October and 2 November 2015.

The background to those judgments is as follows. The matter commenced before Judge Cogswell on 19 October 2015 and a large amount of material was that day provided to his Honour for reading.

On the second day (21 October 2015) his Honour noted on the transcript, by way of disclosure, that when he held the office of Crown Advocate he had acted for Mr Phillip Bradley in his capacity as the NSW Crime Commissioner and had seen him in conference. His Honour said that when he was Crown Advocate the agencies to whom he had given legal advice included the Commission, the DPP and the Attorney General. His Honour said that he believed he had also seen Mr O'Connor in conference at least once.

Like Mr Bradley, Mr Timothy O'Connor, a senior officer of the Commission, provided an affidavit for the Attorney General in the motions to be heard by Judge Cogswell. His Honour indicated that his recollection was that the legal advice he provided to the Commission was in connection with undertakings and indemnities (rather than legal issues in relation to disseminations or other such matters of the type raised in the motions seeking permanent stays and related orders).

Judge Cogswell disclosed that Ms Alison Morgan, the solicitor for the Commission who was present in the courtroom, was a former Associate to his Honour. His Honour indicated that he held the statutory office of Crown Advocate from about October 2000 until he was appointed to the District Court in February 2007. Ms Morgan had been his Associate at the District Court from 2007 to early 2009. His Honour also disclosed that for part of the time from early 2000 until late in that decade his children had worked for the Commission as monitors.

As a result of those disclosures, each applicant indicated on 21 October 2015 that he was making an application for Judge Cogswell to disqualify himself on the ground of apprehended bias. The applications were heard on 26 October 2015 (in respect of Seong Lee) and 2 November 2015 (in respect of Jason Lee).

A note provided by Judge Cogswell to the parties concerning his former Associate was in the following form:

Before the applications were made, an email was placed before the parties dated 26 October 2015 from Ms Tracey Howe of the Crown Solicitor's Office. This email notified the applicants’ legal representatives of the result of searches and inquiries made of the Commission regarding the nature of his Honour's previous involvement, when Crown Advocate, in providing legal advice to the Commission. That email was received in evidence on the disqualification application. The email of 26 October 2015 was as follows:

By email of Friday afternoon (2:41pm) to the respondents' counsel, Mr Strickland SC raised the following questions:

The following response was given by Ms Tracey Howe:

Both counsel for the applicants provided written submissions in advance of the oral argument. Those written submissions related to the legal principles applicable to a claim of apprehended bias.

On 26 October 2015 Judge Cogswell heard oral submissions on the disqualification application made by Seong Lee. The application was based on his Honour’s previous involvement when Crown Advocate in advising the Commission and on a family association. Following the receipt of the oral submissions, his Honour adjourned for a short time and then delivered an ex tempore judgment refusing Seong Lee’s disqualification application.

Having referred to relevant authority (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [7] – [8]; Johnson v Johnson [2000] HCA 48; 201 CLR 488) his Honour said:

On 2 November 2015 oral submissions in support of a disqualification application were made on behalf of Jason Lee. Following submissions, Judge Cogswell delivered an ex tempore judgment refusing Jason Lee’s disqualification application.

In respect of further oral submissions made about his Honour’s children having previously worked at the Commission, his Honour said:

In considering this question, the statements of principle in Re Polites; Ex Parte the Hoyts Corporation Pty Ltd [1991] HCA 25; 173 CLR 78 at 87 – 88 are on point. There, the plurality (Brennan, Gaudron and McHugh JJ) said:

In Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 observations of a similar kind were made. There, the plurality (McHugh, Kirby and Callinan JJ) said at [33]:

Having regard to those principles, and the evidence of the various connections which Judge Cogswell had with the Commission, I have not been persuaded that his Honour misapplied any legal principles when considering the applications to disqualify himself. For the reasons which his Honour gave, he rightly rejected the application.

Ground 5 of the applicants’ grounds of appeal has not been made out.

No successful challenge to the judgment of Cogswell SC DCJ of 29 August 2016 has been made out. This is not surprising given the evidence apparently available to the Crown to establish the counts alleged against both applicants and the very high standard which the applicants had to satisfy in order to obtain a permanent stay. A consideration which is sometimes forgotten is that which Mason CJ set out in Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23 at [33]:

In Williams v Spautz [1992] HCA 34; 174 CLR 509 the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) said at 529:

It follows that the order which I propose is that leave to appeal against the judgment of Cogswell SC DCJ of 29 August 2016 refusing to grant a permanent stay in favour of the applicants should be granted but that the appeal be dismissed.

This then leaves for consideration the cross-appeals by the Attorney General.

The Attorney-General has cross-appealed against the following two interlocutory orders which the primary judge made:

By notice of cross-appeal filed 30 December 2016 the Attorney General submitted that Judge Cogswell erred in ordering that Brendan Pak be prohibited from giving evidence in the prosecution case against Seong Lee. Pursuant to s 5F(2) of the Criminal Appeal Act the appeal by the Attorney General is as of right. The Attorney General submitted that it was not open to his Honour to conclude that the calling of Brendan Pak in the prosecution against Seong Lee would give rise to a real potential for and lead to unfair consequences for Seong Lee.

The Attorney General submitted that the primary judge’s finding in respect of Brendan Pak proceeded by way of three connected steps so that if there were an error in any one step, that would be sufficient to undermine his Honour’s conclusion and make it appropriate for the orders to be set aside. The Attorney General submitted that there is an error in each of the three steps.

The Attorney General submitted that the first step in Judge Cogswell’s reasoning was that Mr Pak changed his position over several pre-trial interviews/examination by the Commission. At [113] the primary judge said:

The Attorney General submitted that when one looks at the timing of events, there was no basis for his Honour accepting that contention. The Attorney General noted that Brendan Pak was examined by the Commission on 9 December 2009, i.e. before Seong Lee was first examined by the Commission on 16 December 2009. At his examination on 9 December 2009, Mr Pak gave evidence to the Commission that, amongst other things, on some occasions Mr Pak selected the boxes of washing powder that Seong Lee took away and that on other occasions Seong Lee just took boxes. The Attorney General relied upon the following evidence:

On the basis of that evidence, the Attorney General submitted that before Seong Lee had been compulsorily examined, the Commission knew from Mr Pak's evidence that Seong Lee assisted him in unloading boxes of washing powder which had been imported and that Seong Lee took away with him some boxes that he seemingly selected to take away. The Attorney General also noted that in his compulsory examination on 16 December 2009, Seong Lee did not give evidence to the effect that he selected certain washing powder boxes marked with a texta.

It followed, so the Attorney General argued, that there was no cogent basis arising from the relevant compulsory examination of Brendan Pak and the compulsory examination of Seong Lee which could support a contention that evidence given by Seong Lee at his compulsory examination was, in some manner, used to forewarn and shape the evidence of Mr Pak.

The Attorney General submitted that the second step in the reasoning of the primary judge on this issue depended upon an acceptance by him of the following proposition put forward on behalf of the applicants:

The Attorney General submitted that the primary judge must be taken to have accepted the applicant's contention in this respect. The Attorney General submitted that it was not open to his Honour to do so on the evidence. There was no evidence that police exposed Seong Lee's interview contents to Mr Pak and there was no evidence that Mr Pak was given any access to the evidence from either of the applicants’ compulsory examinations. No police or Commission officer agreed that he had told Mr Pak anything that Seong Lee said in his compulsory examination. There was no evidence that police or the Commission shaped and forewarned the evidence of Mr Pak.

In its submissions the Attorney General reviewed the available evidence on this issue as follows.

Detective Hughes, the Joint Officer in Charge (OIC), gave evidence that he did not appreciate (in 2010) that compulsory transcripts were secret, but firmly denied that he told Brendan Pak that Seong Lee had given evidence at his compulsory hearing that Mr Pak had selected the boxes. Detective Hughes said: "I didn't say that to Mr Pak. I didn't discuss [Seong Lee's] transcript with Mr Pak.” (Transcript 27 April 2016, p 295 (AB vol 3, tab 52, p 1037))

Detective Plummer (the other OIC) gave evidence that he did not discuss with Brendan Pak the evidence he was about to give to the Commission. Detective Plummer said "I wasn't going to interfere with that Crime Commission process. I never have. Never will”. (Transcript 28 April 2016, p 319, (AB vol 3, tab 53, p 1061))

Neil Tuckerman of the Commission gave evidence that he did not recall anyone suggesting to Brendan Pak the contents of any evidence given by Seong Lee. (Transcript 28 April 2016, p 374 (AB vol 3, tab 53, p 1116))

As to whether someone might have told Brendan Pak what Seong Lee said when he was compulsorily examined, Jessica Parker gave evidence that it was possible. However, that answer was qualified. Ms Parker said "I believe it's possible, yes, but I can't say". Ms Parker also resisted the suggestion (by counsel for Seong Lee) that it was "likely" to have happened. (Transcript 22 April 2016, p 206 (AB vol 3, tab 51, p 948))

The Attorney General submitted that there was, in effect, no evidence that police or the Crime Commission shaped and forewarned the evidence of Mr Pak. It submitted that the evidence was to the contrary. The Attorney General submitted that the onus was on the applicants to demonstrate their entitlement to an order and that they had not discharged that onus. The Attorney General submitted that mere assertion without evidence was insufficient.

By way of further support for its submission, the Attorney General noted that defence counsel at the first trial (who had the transcripts of the compulsory examinations) did not suggest to Mr Pak during cross-examination that police had used Seong Lee's evidence to the Commission to influence him to change his evidence, or had told Mr Pak anything that Seong Lee said to the Commission (AB vol 12, tab 81 and vol 13, tab 82).

The Attorney General submitted that the third step in the primary judge’s reasoning process was to accept the applicants' submission that they would be limited or hindered in cross-examining certain witnesses at trial because the cross-examiner, in exploring Mr Pak's argued change of position, would be at risk of "revealing the content of Seong Lee's compulsory examination". Thus, his Honour said:

The applicants argued and his Honour accepted that this would alter the accusatorial process inherent in a criminal trial in a fundamental sense (citing Bathurst CJ in R v Sellers; R v McCarthy [2015] NSWCCA 76; 89 NSWLR 155 at [123]).

The Attorney General submitted that his Honour’s approach and the approach of the applicants to that issue was in error. The Attorney General submitted that it was difficult to see how a cross-examiner appearing for Seong Lee, in exploring with Brendan Pak the suggested change in his position (to the effect that, across a series of examinations, he moved to a position that more keenly incriminated Seong Lee), would be at risk of exposing the contents of Seong Lee's compulsory examination. To the extent that positive propositions would be put to Brendan Pak in cross-examination, and assuming they related to any dealings between him and Seong Lee, then presumably the propositions would be put, and only put, on the basis of the instructions given by Seong Lee to his counsel. To that extent, the cross-examiner might be at risk of exposing, impliedly, his instructions from Seong Lee but this would not be taken as involving or necessarily involving, the revelation of any of the contents of Seong Lee’s compulsory examination.

The Attorney General noted that when dealing with the applicants’ contentions in respect of Brendan Pak, Judge Cogswell referred ([112] and [115] of his judgment) to the decision of the Court of Criminal Appeal in R v Sellers; R v McCarthy and the order upheld in that case in respect of Mr Tang, the accountant. The Attorney General submitted that the facts of R v Sellers; R v McCarthy were quite different from those relating to Mr Pak.

The Attorney General sought to distinguish R v Sellers; R v McCarthy from the position of Brendan Pak and the applicants as follows.

In R v Sellers; R v McCarthy the proposed witness Mr Tang had been present during the compulsory examinations and conceded that the compulsorily acquired material and the defendants’ evidence at the compulsory examinations may have assisted him in understanding the defendants’ involvement in the relevant taxation schemes, being the subject on which it was proposed that he give evidence.

Mr Tang could not give direct evidence about the defendants’ involvement in relevant matters. His evidence was substantially based upon the review of the documentary material including the transcript of the defendants’ compulsory examinations (which he also observed). By way of contrast, in the present case Mr Pak would give direct evidence about his interactions with the two applicants that was relevant to their role in the supply of pseudoephedrine. He was a person who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. He is a key Crown witness of fact.

Further, in contrast to the facts in R v Sellers; R v McCarthy, there is no evidence that Mr Pak was given access to the evidence from the applicants’ compulsory examination. The Attorney General submitted that the onus was on the applicants to demonstrate their entitlement to an order. Speculation was insufficient to provide a basis for the orders sought and to prevent a witness from giving evidence which was otherwise admissible.

The Attorney General submitted that on a proper review of the evidence, it was not open to the primary judge to order that Brendan Pak be prohibited from giving evidence in the prosecution of Seong Lee. On the evidence there was no proper basis for the making of such an order.

No submissions were made, either in writing or orally, by the applicants in relation to that issue. Accordingly, it has been necessary to approach the matter on the basis of the reasoning behind the primary judge’s decision and the challenges made to that decision by the Attorney General.

On my review of the evidence, I agree with the submissions of the Attorney General. It was not open to the primary judge to make the findings which he did. His Honour appears to have accepted somewhat uncritically, the submissions put by the applicants which on closer examination of the evidence were not made out. Moreover, the position of Brendan Pak is very different to that of Mr Tang in R v Sellers; R v McCarthy.

The conclusion which I have reached is that the cross-appeal against the order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Lee should be upheld and the order should be set aside.

The Attorney General submitted that the primary judge erred in imposing a stay of the criminal proceedings against Jason Lee and Seong Lee, which were the subject of the retrial order by the High Court. The temporary stay was sought by the applicants, based on conduct by “the prosecution authorities” in connection with the provision to the DPP of the compulsory hearing transcripts of the applicants. The quantum of costs claimed by the applicants, in respect of the first District Court trial was in the order of $412,500 (affidavit of Edward Chee, 15 July 2015 at [108], (AB vol 9, tab 59)). Those costs were calculated at “set rates”. At commercial rates the amount was in the order of $544,990. His Honour did not accept that “reasonable costs” would be costs calculated at commercial rates.

There is no longer an issue that the Court has power in an appropriate case to order a stay of criminal proceedings until the prosecutor pays the legal costs of the accused. In R v Curtis [2014] NSWSC 1582 at [24] – [27] Davies J summarised the applicable principles:

In Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 at [7] Santow JA (with whom Smart AJ agreed) said:

By way of background, the proceedings in the Court of Criminal Appeal in 2012 and 2013 and in the High Court, proceeded on the basis that, but for the prosecution having received (wrongfully from the Commission) the transcript of the compulsory examinations of the applicants, the prosecutor would not have been in possession of such information, which might throw light on possible defences each applicant might raise. This is consistent with the High Court finding that, by reason of the provision of the transcripts to the prosecutor, the applicants' “trial was one where the balance of power shifted to the prosecution” (Lee v The Queen at [46]) and that “what occurred in this case affected this criminal trial in a fundamental respect, because it altered the position of the prosecution viz-a-viz the accused (Lee at [51]).

The Attorney General submitted that unknown to the High Court and the Court of Criminal Appeal in 2012 and 2013, the applicants (by their solicitor, Mr Miralis) had voluntarily made disclosures to the DPP (to the solicitor with conduct of the criminal proceedings) about the fact of, and some of the content of the compulsory examination of Seong Lee by the Commission. Before this disclosure by the applicants, the DPP had been unaware that any examinations had taken place (and did not have any transcripts). Their solicitor, Mr Miralis, also indicated investigative steps that should be taken (by the prosecution/police) arising from Seong Lee’s compulsory hearing. It was the conduct of Mr Miralis, on behalf of Jason Lee and Seong Lee which prompted the ODPP solicitor to request and obtain copies of the compulsory hearing transcripts. Further, in the context of considering the permanent stay applications, Judge Cogswell made findings favourable to the Attorney General in connection with the disclosures and the conduct of the DPP solicitor who requested the transcript from the Commission.

The Attorney General observed that whether the High Court, had it been aware of the further evidence which emerged in the proceedings before Judge Cogswell and the associated findings that his Honour made, would necessarily have made the comments and findings in the precise terms that it did in the 2014 judgment, is moot.

The Attorney General noted that in the context of considering the application for a permanent stay, the primary judge said:

The Attorney General submitted that properly considered, the fact of such disclosures, the associated evidence and his Honour’s findings were relevant, not only to the application for a permanent stay but also to the question of whether Judge Cogswell ought to have imposed a temporary stay of the joint criminal trial of the applicants pending payment by the DPP of the applicant’s reasonable legal costs from the first trial.

In the course of its submissions on this issue, the Attorney General reviewed the voluntary disclosures by the applicants to the DPP of aspects of their intended defence in the criminal proceedings. A summary of that review is as follows.

On 22 February 2010 Mr Miralis, the solicitor for Jason Lee, wrote to Ms Victoria Garrity, the then ODPP solicitor with carriage of the matter, advising that Jason Lee had a lawful source for the funds seized in the vehicle stop in February 2009, and that he would be relying on oral and documentary evidence demonstrating this, as well as evidence of his significant business interests in Australia over an extended period. Mr Miralis further advised that Jason Lee would be relying on evidence of his family's wealth and of them forwarding money to Australia for the purpose of investing in the J & Lee Property Investment Group. Mr Miralis advised that Jason Lee's wife and his daughter would give corroborating evidence of his business interests in Australia, the forwarding of funds to him from overseas over an extended period from his wife's father, and of J & Lee Property Investment Group's business interests. Mr Miralis indicated that such evidence would be directly relevant to the issue of the lawful source of the money and casino chips. Mr Miralis asked that criminal justice certificates be arranged for Jason Lee's wife and daughter.

On 4 March 2010 Mr Miralis, on behalf of Jason Lee, made a No Bill application to the ODPP in connection with the proceeds of crime charges arising from the 25 February 2009 vehicle stop. The No Bill application included details of an explanation by Jason Lee for the possession of the $95,000 cash and casino chips, and included a report from an accountant regarding Jason Lee's involvement with J & Lee Property Investment Group Pty Ltd, as well as a copy of the passport of his sister Hu Lee.

On 18 May 2010 Mr Miralis wrote again to Ms Garrity of the ODPP, this time following Jason Lee having been charged with a large commercial supply of pseudoephedrine (after further testing of washing powder located in the Waterloo premises). Mr Miralis advised that Jason Lee's wife and daughter would provide evidence of an exculpatory nature as to how the washing powder came to be in the premises, as well as the lawful provenance of Jason Lee's money, including through their own knowledge and participation in the transfer of funds from South Korea to Australia.

Mr Miralis said that the evidence from Jason Lee's wife and daughter would be equally relevant to Seong Lee, who had been charged with similar offences. Mr Miralis renewed his application that criminal justice visas be arranged for Jason Lee's wife and daughter.

On 24 May 2010 Mr Miralis wrote again to Ms Garrity, on behalf of Jason Lee and Seong Lee.

Mr Miralis advised Ms Garrity that:

In this letter Mr Miralis further advised that Mr Graham Turnbull SC had asked Mr Miralis to convey to the ODPP his “extreme concern” that, given the above, Jason Lee’s wife and daughter had not been interviewed by police.

Mr Miralis advised that Jason Lee’s case, as evident from related Supreme Court CARA proceedings, was that he was not residing at and had no control over the Waterloo premises and that his wife and daughter could provide corroborative evidence on this aspect. Mr Miralis repeated his request that criminal justice visas be arranged for Jason Lee’s wife and daughter.

The effect of those communications can be easily summarised. Mr Miralis’ letter disclosed to the ODPP that Seong Lee had given evidence to the Commission and details of parts of that evidence. Mr Miralis went further and suggested that investigative steps be taken in respect of the material arising from Seong Lee’s compulsory examination.

The Attorney General noted that for reasons that were not readily apparent, Mr Miralis’ letter of 24 May 2010 to Ms Garrity was not part of the evidence before the NSW Court of Criminal Appeal or the High Court. This is despite the fact that the sending of that letter by Mr Miralis preceded and clearly prompted Ms Garrity’s email to Brendan Plummer of 1 July 2010 (which was the subject of consideration by the High Court and the Court of Criminal Appeal) requesting copies of Commission transcripts of evidence given by Seong Lee and if he gave evidence, Jason Lee. Ms Garrity was unaware of the Commission having undertaken such compulsory examination of the applicants until the communication from Mr Miralis.

Ms Garrity gave evidence before Judge Cogswell that after receiving the letter of 24 May 2010 from Mr Miralis, she sent the email of 1 July 2010 requesting copies of the Commission transcripts because:

The Attorney General submitted that Cogswell DCJ made a number of key findings that are relevant to this ground when dealing with the application for a permanent stay. The complaint made by the Attorney General is that when dealing with this ground of appeal, his Honour failed to apply those key findings. The Attorney General submitted that to the extent that this ground involves a challenge to a discretionary judgment, to which the principles in House v The King [1936] HCA 40; 55 CLR 499 apply, his Honour’s judgment was liable to be set aside in that his Honour failed to take into consideration material matters, i.e. the key findings which he had already made.

The key findings relied upon by the Attorney General are:

The Attorney General submitted that his Honour should accept that consistent with the judgment of Ipp JA in Petroulias v The Queen (Latham and Fullerton JJ agreeing) relevant unfairness could not be established without proof of fault on the part of the prosecution. The Attorney General submitted that when this part of his Honour’s judgment is read as a whole, it is apparent that his Honour in effect failed to apply and have proper regard to the key findings which have just been set out. The Attorney General submitted that this amounted to House v The King error.

The Attorney General submitted that when considering this question his Honour failed to have regard to his finding that the provision of transcript from the Commission to the DPP was consistent with the prevailing view held at the time and that this finding was confirmed by the actions of Mr Miralis who clearly did not regard such disclosure as prejudicing his clients’ fair trial.

The Attorney General submitted that while the correctness of the High Court decision must be accepted, when considering the application for a temporary stay, Cogswell DCJ was required to determine whether there was relevant fault on the part of the prosecution and if so, its extent. The Attorney General submitted that by failing to have regard to the key findings which he had made in the context of the permanent stay application on this issue, his Honour failed to have regard to matters which would have had the effect of either removing or significantly diminishing the notion of there having been for the purposes of the temporary stay analysis, relevant fault on the part of the prosecution.

No submissions, either orally or in writing, were made by the applicants in relation to this issue. It is therefore necessary to consider the submissions which were made to his Honour by both sides and his Honour’s reasoning in order to assess whether the Attorney General’s criticism has been made out.

Before his Honour the applicants submitted that the observations by the High Court, which were critical of the prosecution, were sufficient to establish fault on its part thereby justifying the granting of a temporary stay until the applicant’s reasonable costs of the first trial were paid. The applicants submitted that it was not necessary for egregious or flagrant misconduct on the part of the prosecution to be established but fault on its part would be sufficient. They submitted that the findings of the High Court in Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455 would easily reach that threshold.

The Attorney General put the same arguments to his Honour as were raised before this Court. In particular that his Honour had much more information about how the transcripts came into the possession of the prosecution than did the High Court. In that regard, his Honour reiterated his finding that he had no hesitation in accepting Ms Garrity’s evidence about why she sought the transcripts, but noted that her role ceased at an early stage.

His Honour had particular regard to the High Court’s critical observations directed to the Crown Prosecutor at the trial. His Honour specifically relied on the following observations by the High Court in Lee v The Queen:

His Honour also relied on the concession made by the Attorney General that “It is not disputed that in the earlier proceedings the DPP used the material for an improper purpose”.

His Honour set out his conclusion as follows:

On my reading of the authorities, more than simple fault on the part of the prosecution is required before a court should make an order of the kind under consideration. On the other hand, the authorities do not unequivocally say that the fault has to be flagrant or egregious. It would be sufficient in my opinion if the fault were of a serious kind.

Otherwise it seems to me that two issues arise. Firstly, did his Honour’s exercise of discretion miscarry in a House v The King way and if that is made out, in the re-exercise of discretion by this Court is fault of the relevant kind made out so as to justify a temporary stay.

It cannot be said that his Honour disregarded his findings as to Ms Garrity. He specifically referred to those findings in relation to her. What his Honour does appear to have left out of his consideration is his finding that there was a respectable body of opinion at a high level (including the members of the Court of Criminal Appeal who considered the applicants’ appeal) to the effect that it was not oppressive for the Crime Commission transcripts to be provided to the prosecution. His Honour also appears to have disregarded that much of the damaging information in the Commission transcripts had already been communicated to the prosecution by Mr Miralis. These were important considerations because they affect how one treats the observations of the High Court which were critical of the prosecution.

For example, if the prevailing opinion at the time of trial was that the Commission transcripts were not oppressive, then there was no reason why the Crown Prosecutor would have taken the matter to the trial judge and even if he had brought it to the attention of the trial judge, the trial judge may well have followed the prevailing opinion and allowed the trial to continue with no change to the prosecutor and other DPP personnel.

Looked at in that way, the fault on the part of the prosecution was in holding a wrong opinion as to the law which was only corrected when the High Court delivered its decisions in X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 and Lee v The Queen.

It follows that I am satisfied that his Honour’s exercise of discretion did miscarry by failing to take into account those two important matters. That means that this Court has to re-exercise the discretion on this issue. That poses fairly and squarely the question of whether fault of the kind which I have identified on the part of the prosecution, i.e. an incorrect understanding of the law, which led to the first trial miscarrying, is fault of the kind which justifies the granting of a temporary stay pending the payment of the applicants’ reasonable costs.

On my reading of the authorities, fault of this kind is not such as would provide a proper basis for his Honour granting a temporary stay.

There is another consideration. It is clear from the proceedings before his Honour that if a stay in the form granted by his Honour were allowed to remain in force, there would continue to be a significant dispute as to the quantum of those costs. Substantial delay would be likely to occur before that issue was resolved. That would occur in circumstances where there has already been excessive delay in the charges against the applicants being finalised.

Accordingly, if I am wrong in my conclusion as to fault, and it was appropriate for a temporary stay to be granted, I would do so on the basis not that the DPP pay the reasonable costs of the applicants but that such temporary stay operate until the DPP gave an undertaking to pay the reasonable costs of the first trial incurred by the applicants. This would have the advantage of enabling the joint trial to proceed and preventing arguments as to the quantum of the costs further delaying that proceeding.

I am satisfied that the second ground of the cross-appeal has been established by the Attorney General and that the order imposing the temporary stay pending the payment of costs should be set aside.

The orders which I propose are as follows:

LATHAM J: I agree with Hoeben CJ at CL

PRICE J: I agree with Hoeben CJ at CL.