NSW Crime Commission and self-incrimination – High Court decision

In Lee  & Anor v NSW Crime Commission [2013] HCA 39 handed down on 9 October 2013, the High Court dismissed an appeal from a NSW Court of Criminal Appeal decision which had allowed an appeal in favour of the Crime Commission. The case concerned concurrent civil proceedings against Lee and another appellant brought by the Crime Commission, and criminal proceedings against them alleging money laundering.In the Crime Commission proceedings, the Commission had applied for orders in the Supreme Court allowing Lee to be examined about his financial affairs with a view to making a confiscation order of his assets. Under the Criminal Assets Recovery Act 1990, the rule of law protections available in criminal proceedings to safeguard the presumption of innocence including the privilege against self-incrimination, the right to confidentiality and legal professional privilege do not apply to confiscation proceedings. This meant there was a risk that the content of the Crime Commission proceedings could affect the money laundering criminal proceedings.Lee argued that the previous High Court decision in X7 v Australian Crime Commission [2013] HCA 29  applied. In that case  a majority of the High Court found that the compulsory examination powers of the Australian Crime Commission did not include the power to require a person to answer questions about the subject matter of a criminal offence with which a person had been charged. That is because, according to the High Court judgement summary

“if the examination provisions of the Act were interpreted to permit compulsory examination in such circumstances, the provisions would effect a fundamental alteration to the accusatorial and adversarial process of criminal justice. Such an alteration could only be effected by express statutory language or by necessary implication”.

However, by a narrow 4:3 majority in Lee the High Court found that because the NSW Crime Commission’s powers were not absolute, the information obtained could only be used in certain ways and the Supreme Court retained its inherent power to refuse to make an examination order. There was no conflict between the civil and criminal proceedings so the examination of Lee could proceed.

RoLIA has expressed its concerns previously about the ongoing creep of executive powers such as those given to crime commissions and other regulatory agencies that can damage the presumption of innocence which is fundamental to the rule of law . In the words of Justice Bell who was in the minority in Lee at [256]:

“To acknowledge that to compel an accused to give an account of the circumstances of an alleged offence in parallel civil proceedings may limit the capacity of the accused to put the prosecution to proof at the criminal trial is not to condone the pursuit of falsehood.  To characterise it in that way risks inverting the assumption upon which our adversarial system of criminal justice proceeds, which is to say that the accused is entitled to be acquitted of a charge of criminal wrongdoing unless unaided by him or her the prosecution proves guilt.”