“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 :
“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.”