Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: New South Wales Crime Commission v Jason Lee [2012] NSWCA 276
• Hearing dates: 9 August 2012
• Decision date: 06 September 2012
• Before: Beazley JA at [1]; McColl JA at [13]; Basten JA at [14]; Macfarlan JA at [84]; Meagher JA at [85]

Decision

(1) In addition to the orders made by RS Hulme J in the Common Law Division on 28 February 2011 -

order that the notice of motion filed by the Commission on 10 June 2010 be otherwise dismissed, such order to take effect from 28 February 2011.

(2) Grant leave to appeal and direct that the appellant file within seven days a notice of appeal in the form of the draft notice contained in the white folder.

(3) Allow the appeal and set aside the additional order identified in (1) above.

(4) Pursuant to s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW), order that:

(a) Jason Lee (aka Do Young Lee) be examined on oath before a registrar concerning his own affairs, including the nature and location of any property in which he has an interest, on a date and at a time to be fixed by the registrar.

(b) Seong Won Lee be examined on oath before a registrar concerning the affairs of Jason Lee (aka Do Young Lee) or Elizabeth Park, including the nature and location of any property in which Jason Lee (aka Do Young Lee) or Elizabeth Park has an interest, on a date and at a time to be fixed by the registrar.

(5) Order that the respondents pay the Commission's costs in this Court.

(6) Grant the respondents certificates under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - civil - appeal from discretionary decision - whether Court of Appeal should intervene where Court would have exercised the discretion differently - whether powers of Court of Appeal under Supreme Court Act 1970 (NSW), s 75A constrained by House v The King [1936] HCA 40; 55 CLR 499; APPEAL - civil - leave to appeal - whether disparate approaches to similar statutory regimes justifies leave to appeal; CRIMINAL LAW - recovery of proceeds of crime - examination orders - whether examination would interfere with the administration of justice in criminal proceedings - whether examination order may be made where criminal charges pending against examinee - whether procedural protections available to prevent abuse of power - Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63; PROCEDURE - civil - primary judge refused but did not dismiss application - whether oversight - whether parties treated application as dismissed - whether Court of Appeal should make the order which should have been made - whether Court of Appeal's order should take effect on date of primary judge's orders - Uniform Civil Procedure Rules 2005 (NSW), r 36.4(3); PROCEDURE - interlocutory issues - suppression orders - order for examination of persons before officer of Supreme Court - whether suppression order available to prevent prejudice to a future criminal trial - Court Suppression and Non-publication Orders Act 2010 (NSW), s 8; STATUTORY INTERPRETATION - Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63 - examination orders - whether power to order examination limited by general law principles relating to a fair trial
• Legislation Cited: Australian Crime Commission Act 2002 (Cth), s 25A; Civil Procedure Act 2005 (NSW), s 13; Companies Act 1961 (Qld); Companies (New South Wales) Code, s 541; Court Suppression and Non-publication Orders Act 2010 (NSW), ss 4, 6, 7, 8; Crimes Act 1914 (Cth); Criminal Assets Recovery Act 1990 (NSW), ss 3, 4, 10A, 12, 13, 13A, 22, 27, 28A, 31D, 62, 63; Pts 2, 3, item 2; New South Wales Crime Commission Act 1985 (NSW) ss 13, 18, 18B; Proceeds of Crime Act 2002 (Cth); Supreme Court Act 1970 (NSW), ss 75A, 120A, 121; Uniform Civil Procedure Rules 2005 (NSW), r 36.4; Sch 10
• Cases Cited: Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258; Clough v Leahy [1904] HCA 38; 2 CLR 139; DAO v R [2011] NSWCCA 63; Eades v Gunestepe [2012] NSWCA 204; Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89; Hamilton v Oades [1989] HCA 21; 166 CLR 486; Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188; House v R [1936] HCA 40; 55 CLR 499; Huston v Costigan (1982) 45 ALR 559; Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; 75 NSWLR 581; McGuinness v Attorney-General of Victoria [1940] HCA 6; 63 CLR 73; Mortimer v Brown [1970] HCA 4; 122 CLR 493; New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658; New South Wales Crime Commission v Kelaita [2008] NSWCA 284; 75 NSWLR 564; New South Wales Crime Commission v Jason Lee [2011] NSWSC 1037; Lockwood v The Commonwealth [1954] HCA 31; 90 CLR 177; Oades v Hamilton (1987) 11 NSWLR 138; R v CB; MP v R [2011] NSWCCA 264; R v Masters (1992) 26 NSWLR 450; Rank Film Distributors Ltd v Video Information Centre [1982] AC 380; Rees v Kratzmann [1965] HCA 49; 114 CLR 63; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281; State of New South Wales v Plaintiff A [2012] NSWCA 248; Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; 152 CLR 25; Warren v Coombes [1979] HCA 9; 142 CLR 531; Whittaker v The King [1928] HCA 28; 41 CLR 230
• Category: Principal judgment
• Parties: New South Wales Crime Commission (Applicant); Jason Lee (aka Do Young Lee) (First Respondent); Seong Won Lee (Second Respondent)
• Representation: Counsel: Mr R J Bromwich SC/Mr E C Muston (Applicant); Mr M Thangaraj SC/Ms G Bashir (First Respondent); Mr G Jones (Second Respondent); Solicitors: New South Wales Crime Commission (Applicant); Nyman Gibson Stewart (Respondents)
• File Number(s): CA 2010/118966

Decision under appeal

• Jurisdiction: 9111
• Citation: NSW Crime Commission v Lee [2011] NSWSC 80
• Date of Decision: 2011-02-28 00:00:00
• Before: R S Hulme J
• File Number(s): SC 2010/119077

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 28 February 2011 RS Hulme J refused the appellant's application for orders that each of the respondents be examined on oath before a registrar of the Supreme Court concerning the affairs of the first respondent and a third person, pursuant to s 31D(1) of the Criminal Assets Recovery Act 1990 (NSW). The primary judge made orders that two other persons be examined, however, his Honour did not make an order otherwise dismissing the application.

One respondent's trial on money laundering charges was outstanding, and both respondents' appeals against conviction in respect of drug supply charges were pending.

The appellant appealed from the orders of the primary judge to this Court. The respondents tendered additional material in this Court revealing that records of interviews by the appellant pursuant to the New South Wales Crime Commission Act 1985 (NSW) had been made available to the prosecution in a District Court trial of the respondents.

The issues for determination on appeal were:

(i) whether this Court should make an order otherwise dismissing the application before the primary judge,

(ii) whether leave to appeal should be granted, and

(iii) whether orders for the examination of the respondents should be made.

The Court held, granting leave to appeal and allowing the appeal:

In relation to (i)

1. The failure of the primary judge to make an order otherwise dismissing the application was an oversight, and the parties treated the relevant order as having been made. The appropriate course is to make the order which should have been made: [15]-[16]

2. Given that the purpose of the order otherwise dismissing the application is to regularise steps which have been taken thereafter on the assumption that an order was made, it is appropriate that the order take effect on the date that the primary judge's orders were made, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 36.4(3): [16]

In relation to (ii)

3. The disparity in curial approaches to statutory regimes for compulsory examination justifies a grant of leave to appeal: [23]

Hammond v Commonwealth of Australia [1982] HCA 42; 152 CLR 188; Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258; R v CB; MP v R [2011] NSWCCA 264; New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658 referred to.

In relation to (iii)

4. Under the general law, the Court will grant an injunction to restrain an inquiry undertaken in the exercise of executive power, it if carries with it a real risk that the conduct of the inquiry will interfere with the administration of justice in criminal proceedings. Such interference would constitute contempt of court and, accordingly, an injunction may lie to prevent a threatened contempt: [24]

Clough v Leahy [1904] HCA 38; 2 CLR 139; McGuinness v Attorney-General of Victoria [1940] HCA 6; 63 CLR 73; Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 referred to.

5. The legislature may authorise a scheme of investigation and inquiry which has the potential to diminish common law protections for an accused in criminal proceedings. The question is one of statutory construction: does the relevant legislation authorise such conduct and, if so, to what extent?: [34]

6. The Criminal Assets Recovery Act does not condition the removal of the immunity from self-incrimination upon the existence or otherwise of outstanding criminal charges. The meaning purpose and structure of the Act indicates that the existence of criminal proceedings would rarely, if ever, be a basis of itself, for the Court to refuse to make an order for examination under s 31D. However, the Court might in the exercise of its discretion refuse to make an order under s 31D where criminal proceedings were on foot: [9]-[10], [43]

7. Given that s 63 of the Criminal Assets Recovery Act provides that the fact of criminal proceedings is "not a ground" to stay an examination under s 31D, it should not be an available ground for resisting or delaying examination on any other procedural basis. The legislature has weighed competing public interests and has determined that the relevant powers should be conferred and should be available despite the possible consequences for an accused in criminal proceedings not yet completed: [46]-[49], [72]

Hamilton v Oades [1989] HCA 21; 166 CLR 486 referred to.

8. The respondents did not demonstrate an error in the approach of the majority in Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258, accepted as correct by the Court of Criminal Appeal in R v CB; MP v R [2011] NSWCCA 264, at least with respect to the operation of the Australian Crime Commission Act. This Court would not decline to follow a judgment of the Court of Criminal Appeal in these circumstances, unless persuaded that it was clearly wrong: [59], [65]

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 referred to; R v Masters (1992) 26 NSWLR 450 disapproved.

9. The legislative regime established by the Australian Crime Commission Act 2002 (Cth) is different and the State Act must be analysed on its own terms. The difference between the powers and function of an inquiry before an officer of the executive branch of government and an inquiry before a judicial officer of the Supreme Court has significant weight. Evidence as to what happened in respect of interviews conducted by the appellant in the exercise of executive power conferred by the New South Wales Crime Commission Act is of limited value in determining whether an order should be made for examination of the respondents under the Criminal Assets Recovery Act because of the differences between the statutory regimes: [63], [73], [79]-[80]

New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658 referred to.

10. If the questions and answers given during an examination under the Criminal Assets Recovery Act would, were they to be revealed, prejudice a future criminal trial, there is no reason to suppose that a relevant order will not be made under s 8(1)(a) or (e) or both of the Court Suppression and Non-publication Orders Act 2010 (NSW). If a real risk of prejudice is revealed in the course of the conduct of the examination, the registrar before whom the examinations take place will have powers available to diminish or prevent that prejudice, to the extent that it is beyond the prejudice authorised by the Criminal Assets Recovery Act: [53]-[54], [62], [81], [100]-[101]

Hamilton v Oades [1989] HCA 21; 166 CLR 486 applied.

11. The appellant was, in the proper exercise of its functions, entitled to explore the possibility that the respondents held interests in property in other names. Further, there had been no dilatoriness or delay in the steps taken by the appellant, and the lapse of time did not provide a reason not to make the orders sought: [76]-[78], [80]

Judgment

1 BEAZLEY JA: This is an application for leave to appeal by the New South Wales Crime Commission (Crime Commission) against the refusal by his Honour R S Hulme J to make an order under the Criminal Assets Recovery Act 1990, s 31D for the examination of the respondents before the Court or an officer of the Court. The application for leave to appeal and the appeal have been heard concurrently. I have had the advantage of reading in draft the reasons of Basten JA, who proposes that the appeal be allowed and orders be made in respect of the examination of the respondents to the appeal. I agree with his Honour's proposed orders. Given his Honour's detailed consideration of the matter I am able to express my agreement with the proposed orders in short form.

2 Basten JA has referred to a procedural difficulty in the matter. Although, in refusing to make an order under s 31D, the primary judge stated that no orders for the examination of the respondents should be made "at this stage", his Honour did not formalise this aspect of his judgment by any order in respect of these two respondents. Basten JA considers that this Court should make an order dismissing the application so as to formalise the proceedings both in the lower court and in this Court. In circumstances where the parties appear to have acted on the basis that was the order his Honour intended to make, I agree that it is appropriate to make an order in those terms. The application for leave to appeal and the appeal is thus against that order.

3 I agree for the reasons given by Basten JA that leave to appeal should be granted.

4 The respondents are persons against whom the Court has already made orders for the confiscation of property. Both respondents have been charged with and found guilty of offences following a criminal trial, although the trial had not occurred at the time that the primary judge heard the Crime Commission's application. The respondents have appealed against conviction. The appeal was listed for hearing on 23 August 2012. The first respondent is also due to face a further criminal trial for a money laundering offence.

5 I agree with Basten JA's analysis of Hammond v The Commonwealth [1982] HCA 42; 152 CLR 188 and Hamilton v Oades [1989] HCA 21; 166 CLR 486 and as well as with his analysis of the authority in other courts.

6 I agree with Basten JA's identification of the error at [44]-[45] in the primary judge's approach to the exercise of his discretion: see House v R [1936] HCA 40; 55 CLR 499. See also Whittaker v The King [1928] HCA 28; 41 CLR 230 at 242-243 per Isaacs J; DAO v R [2011] NSWCCA 63 at [77] ff per Allsop P. In passing I also refer to my comments in State of New South Wales v Plaintiff A [2012] NSWCA 248 at [2]-[3].

7 As Basten JA points out, the Criminal Assets Recovery Act is an example of the lawful exercise of legislative power, the consequence of which is to interfere with established common law rights and, relevant to this case, the right against self-incrimination. In doing so, Parliament has carefully prescribed the parameters of interference: see, in particular, ss 13 and 13A, the latter provision being of concern in this case. I also agree with Basten JA that s 63 of the Act is relevant to the question in issue here, that is, whether the primary judge erred in the exercise of his discretion in not acceding to the Crime Commission's application for an order under s 31D.

8 The Criminal Assets Recovery Act, s 63, the full terms of which are set out in the reasons of Basten JA at [46] provides that the existence of criminal proceedings is not a ground on which the Supreme Court may stay proceedings under the Act. Apart from s 63, the Criminal Assets Recovery Act does not otherwise provide for or refer to a stay. Accordingly, s 63 must operate in cases where a stay is sought in respect of proceedings under the Criminal Assets Recovery Act, as a limitation on the Court's discretionary power to order a stay.

9 It was suggested that his Honour's refusal to make an order was akin to a stay. That may be so, although there may be a question whether an application for an order under s 31D for the examination of a person is a proceeding to which s 63 applies or whether an order for an examination under the section is an ancillary power conferred on the court to achieve or further the objects of the Act. Those objects include "enabl[ing] law enforcement authorities effectively to identify and recover property": see s 3(c). Regardless of the correct answer to that question, the meaning purpose and structure of the Act indicates that the existence of criminal proceedings would rarely, if ever, be a basis of itself, for the Court to refuse to make an order for examination under s 31D.

10 However, the court might in the exercise of its discretion refuse to make an order under s 31D where criminal proceedings were on foot. This might occur where the person in respect of whom the order was the accused in a long trial that was then proceeding. The court may well consider it inappropriate to make an order at that time. In that circumstance, the court may make one of a number of orders. The two orders which most logically come to mind are to dismiss the application or to stand the application over to a future date.

11 No such circumstance was suggested as operating in this case, although as at the date of delivery of judgment by the primary judge, the criminal trial of both respondents was underway. It is not apparent from his Honour's reasons that he was aware of this as he did not advert to it. Rather, his concern was with the prejudice to the respondents by the potential use of derivative evidence.

12 Relevant error having been found, the question arises as to whether this Court should itself re-exercise the discretion. I agree for the reasons given by Basten JA that this Court should do so. I would only add that since preparing these reasons I have had the opportunity of reading in draft the reasons of Meagher JA with which I agree.

13 McCOLL JA: I agree with Basten JA's reasons and the orders his Honour proposes.

14 BASTEN JA: On 28 February 2011 RS Hulme J gave judgment refusing an application of the New South Wales Crime Commission ("the Commission") for orders that the respondent Jason Lee be examined on oath before a registrar of the Court "concerning his own affairs and including the nature and location of any property in which he has an interest", pursuant to s 31D(1) of the Criminal Assets Recovery Act 1990 (NSW). The Commission sought to examine the respondent Seong Won Lee about the affairs of Jason Lee (also known as Do Young Lee) and a third person believed to be an associate of Mr Jason Lee. The primary judge held that "at this stage no orders for the examination of Jason Lee or Seong Won Lee should be made": NSW Crime Commission v Lee [2011] NSWSC 80 at [21]. The Commission appeals against those decisions.

15 The application for leave to appeal faces a preliminary difficulty: although the primary judge made orders that two persons be examined on the application of the Commission, he did not make orders in respect of the two respondents. Nor did he make an order 'otherwise dismissing' the Commission's notice of motion in which the orders were sought. It is apparent that this was an oversight, not noticed by anyone prior to the hearing of the application for leave to appeal in this Court. That the parties treated relevant orders as having been made appears on three bases. First, the respondents did not raise any objection to the competency of the application for leave to appeal. Secondly, before the hearing in this Court, the Commission renewed its application for such orders in the Common Law Division. The matter was heard by Garling J who noted that the orders sought are "in effectively identical form to those orders sought from RS Hulme J and which RS Hulme J refused": New South Wales Crime Commission v Jason Lee [2011] NSWSC 1037 at [23]. Garling J treated the fresh applications as an abuse of process and dismissed them: at [39]. Thirdly, and perhaps inevitably in the light of the forensic history, no party dissented from the view expressed at the hearing that the oversight could be remedied by this Court.

16 There is no question of varying or setting aside any order of the Court below: the appropriate course is to make the order which should have been made by RS Hulme J on 28 February 2011. Given that the purpose is to regularise steps which have been taken thereafter on the assumption that an order was made, it is appropriate that the order take effect on that date, pursuant to the powers conferred on the Court by Uniform Civil Procedure Rules 2005 (NSW), r 36.4(3). Accordingly, the Court should make the following order:

In addition to the orders made by RS Hulme J in the Common Law Division on 28 February 2011, order that the notice of motion filed by the Commission on 10 June 2010 be otherwise dismissed, such order to take effect from 28 February 2011.

Evidence on appeal

17 On the hearing of the application for leave to appeal, the respondents sought to tender further evidence, pursuant to s 75A of the Supreme Court Act 1970 (NSW). The evidence related primarily to criminal proceedings in relation to the respondents which occurred after the hearing of the motion before RS Hulme J and partly in the period during which judgment was reserved (a period of eight months) and partly (namely the transcript of the hearing before Garling J) after judgment was delivered.

18 The evidence was tendered primarily on the basis that, if leave were granted and the appeal upheld, the Court might itself exercise the power, if the exercise miscarried below. Senior counsel for the first respondent explained how the material would be relevant and as, for the reasons which follow, the Court should re-exercise the discretion which miscarried in the Common Law Division, there will be reference to relevant aspects of the evidence in due course.

19 There was a brief affidavit in response read by the Commission and two documents were tendered in lieu of two paragraphs which constituted hearsay evidence. This material also will be referred to in relation to the re-exercise of the discretion.

Application for leave to appeal

20 It was common ground that s 31D of the Recovery Act conferred a power on the primary judge of a kind which is sometimes described as "discretionary". It was not discretionary in the sense that a decision was to be made as to where, within a range of possible outcomes, the order should fall, as with sentencing, or the assessment of the degree of contributory negligence. Rather, there was a binary outcome possible (either an order was made or it was not), as a result of an evaluative judgment. The respondents contended that, even if error were established, it did not follow that the Court should make the order sought because, the decision being discretionary, no different order should be made "merely because an appellate court would have exercised the discretion differently". That raises a large question as to whether the powers of the Court under s 75A of the Supreme Court Act are so constrained, a proposition which would be inconsistent with the approach accepted by the High Court in Warren v Coombes [1979] HCA 9; 142 CLR 531; see also State of New South Wales v Plaintiff A [2012] NSWCA 248 at [19] and Eades v Gunestepe [2012] NSWCA 204 at [2]-[7]. However, it is appropriate to deal with the issues raised on the basis on which they were addressed by the parties, without reaching a view as to whether the Court enjoys wider powers than those accepted in the course of argument.

21 At the heart of the reasoning of the primary judge was the proposition that the examination of the respondents prior to the determination of the criminal charges, without protection from self-incrimination, "would create a real risk of interference with the administration of justice", with the result that such an examination should not be permitted: at [16]. In support of that conclusion, the primary judge placed reliance on the decision of the High Court in Hammond v Commonwealth of Australia [1982] HCA 42; 152 CLR 188. He declined to apply the reasoning of the majority of the Full Court of the Federal Court in Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 on the basis that the statutory scheme of the Australian Crime Commission Act 2002 (Cth) differed in material respects from the Criminal Assets Recovery Act.

22 The application for leave to appeal was first listed before a three judge bench in December 2011. However, against the possibility that the Court considered the primary judge was in error in failing to follow Australian Crime Commission v OK, the respondents sought leave to challenge the correctness of that decision and sought the constitution of a five judge bench for that purpose. On 9 December 2011 the Court of Criminal Appeal delivered judgment in the matter of R v CB; MP v R [2011] NSWCCA 264 in which the Court (McClellan CJ at CL, Buddin and Johnson JJ agreeing) accepted the correctness of the approach taken by the Full Court of the Federal Court in Australian Crime Commission v OK, again in relation to the operation of the Australian Crime Commission Act. Subsequently, in New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658, a matter arising under the Criminal Assets Recovery Act, McCallum J, although not adopting the reasoning in Australian Crime Commission v OK, thought the relevant statutory regimes were, now, for all practical purposes indistinguishable and declined to follow the approach of RS Hulme J in the present matter.

23 Faced with the disparity in approaches, counsel for the respondents accepted that there should be a grant of leave to appeal. That concession was correct. Accordingly, the Commission should have leave to appeal.

The principle relied on: risk of interference with a criminal trial

24 The issue of principle at the heart of the appeal may be shortly stated. Under the general law, the Court will grant an injunction to restrain an inquiry undertaken in the exercise of executive power, if it carries with it a real risk that the conduct of the inquiry will interfere with the administration of justice in criminal proceedings. Such interference would constitute contempt of court and, accordingly, an injunction may lie to prevent a threatened contempt. That principle has been discussed in a number of cases concerning royal commissions: Clough v Leahy [1904] HCA 38; 2 CLR 139 at 161 (Griffith CJ); McGuinness v Attorney-General of Victoria [1940] HCA 6; 63 CLR 73 at 84-85 (Latham CJ) and Victoria v Australian Building Construction Employees' & Builders Labourers' Federation [1982] HCA 31; 152 CLR 25 at 94-95 (Mason J); 105 (Murphy J); 129 (Wilson J, Aickin J agreeing at 119); 158-159 (Brennan J).

25 Subject to any constraints imposed by the Constitution, and in particular Ch III thereof, the general law may be varied by statute. In Lockwood v The Commonwealth [1954] HCA 31; 90 CLR 177 at 185 Fullagar J was not able to envisage circumstances in which "what is expressly authorized by or under a statute is a contempt, and it is a rule of the common law that the common law itself gives way to statute law": see also Aickin J in Builders Labourers' Federation at 120. Murphy J, in Builders Labourers' Federation, considered the observations of Fullagar J to be erroneous, on the basis that neither the executive power nor legislation could support conduct which tended to undermine the integrity of the courts exercising Ch III judicial power: at 105. The possibility of a relevant constitutional limitation on legislative power was not raised in the present case and may be put to one side.

26 The possibility that an inquiry or investigation, in the course of which a person may be obliged to give incriminating answers, may interfere with the administration of criminal proceedings was articulated in Hammond. That case involved an application for an interlocutory injunction against the conduct of a Royal Commission into the conduct of the plaintiff at a time when charges were pending against him under the Crimes Act 1914 (Cth). The Court granted an injunction to restrain the Commissioner from proceeding further with the examination of Mr Hammond while criminal proceedings against him were pending. However, it is not a case which lends itself to the extraction of principle. As noted by Gibbs CJ, the matter was heard and determined as a matter of urgency, within three days: at 196. The parties approached the proceedings on the basis that the witness had no right to refuse to answer questions on the ground that the answers might incriminate him. All members of the High Court expressed disquiet with that concession, but Gibbs CJ (with whom Mason J agreed) approached the matter on the assumption that the concession was correct: at 198 and 199. Murphy J and Deane J held that the injunction should be granted whether or not he could be required to answer incriminating questions: at 201 and 209. It may be that Brennan J adopted the same approach: at 202-203. Murphy J held that it was inconsistent with the plaintiff's constitutional right to trial by jury for a federal offence that "he now be subject to interrogation by the executive government or that his trial be prejudiced in any other manner": at 201. His Honour continued:

"To maintain the integrity of the administration of the judicial power of the Commonwealth an order should issue restraining the Commissioner from directing the plaintiff to answer any question which would tend to incriminate him in respect of the pending criminal proceedings. It appears from the record and statements of counsel that the only questions which the Commissioner desires to put are those which would so tend to incriminate him. In view of his refusal to answer, continuance of the questioning would not serve any purpose of the Commission except to embarrass him."

27 As the questioning was to occur in private, it is unclear whether Murphy J thought that such embarrassment would create a real risk of interference with the criminal trial. The majority declined to restrain the Commissioner from reporting on his inquiries, which were otherwise complete.

28 Deane J held at 206:

"Such an extra-curial inquisitorial investigation of the involvement of a person who has been committed for trial in the matters which form the basis of the criminal proceedings against him constitutes, in my view, an improper interference with the due administration of justice in the proceedings against him in the criminal court and contempt of court."

29 Accepting for present purposes that a majority would have restrained the questioning even if the plaintiff were entitled to refuse to answer questions which might incriminate him, those reasons may form the majority approach. More importantly, although it seems likely that both Murphy J and Deane J would have denied the Parliament power to legislate expressly to permit such an investigation to go ahead, that issue was not addressed.

30 There is a long history of legal constraints on the common law right not to answer questions which might incriminate one. As noted by Windeyer J in Rees v Kratzmann [1965] HCA 49; 114 CLR 63 at 80:

"There is in the common law a traditional objection to compulsory interrogations. Blackstone explained it: 'For at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men': Comm iv, 296. ... But, strong as has been the influence of this attitude upon the administration of the common law, of the criminal law especially, it must be admitted that in the Chancery Court it had less place: and in bankruptcy jurisdiction it has been largely displaced. For example, a debtor upon his public examination in bankruptcy cannot refuse to answer questions on the ground that the answers may incriminate him ..., the purpose of the bankruptcy statute being to secure a full and complete examination and disclosure of the facts relating to the bankruptcy in the interests of the public. The provisions of The Companies Act reflect, it seems to me, the same idea. The honest conduct of the affairs of companies is a matter of great public concern to-day. If the legislature thinks that in this field the public interest overcomes some of the common law's traditional consideration for the individual, then effect must be given to the statute which embodies this policy."

31 Reference was also made in the course of argument to the decision in Mortimer v Brown [1970] HCA 4; 122 CLR 493, which held that upon an examination of company officers in respect of whom a liquidator had reported that they had concealed material facts and committed acts of fraud in relation to the affairs of the company, questions could be put, the answers to which would tend to incriminate them. Further, in Hamilton v Oades [1989] HCA 21; 166 CLR 486 a company officer who had been charged with criminal offences arising out of the collapse of a company of which he was a director sought to restrict his examination, under the Companies (New South Wales) Code ("Companies Code") then in force, to matters which were not the subject of the pending criminal proceedings. The Code expressly abrogated any right to refuse to answer questions where the answer might tend to incriminate and also provided that where objection had been taken before answering, the answer would not be admissible in evidence in criminal proceedings: s 541(12) set out at 493. The Deputy Registrar before whom the examination was being conducted refused to limit the examination in the way proposed. An application to review that decision was rejected by McLelland J, but an appeal was allowed: Oades v Hamilton (1987) 11 NSWLR 138. As explained by Mason CJ in the High Court, the Court of Appeal had granted relief on the basis that "because a person charged is not ordinarily required to submit to pre-trial interrogation, to reveal his defences or to produce documents under compulsion, questions asked of that person pursuant to s 541 may lead to the giving of incriminating answers in respect of matters central to the charge which may result in significant prejudice to the person charged and constitute 'a real interference in the administration of criminal justice'": at 494. As Mason CJ explained, in rejecting that approach:

"It is plain that an examination under s 541 while charges are pending may expose the witness to the risks mentioned. To the extent only that under the section rights of an accused person are denied and protections removed, an examination may even amount to an interference with the administration of criminal justice. But it is well established that Parliament is able to 'interfere' with established common law protections, including the right to refuse to answer questions the answers to which may tend to incriminate the person asked ...."

32 Counsel for the respondents sought to distinguish Hamilton v Oades on the basis that three important considerations were treated as significant in the approach adopted to s 541. Thus, at 496, Mason CJ stated:

"First, it expressly abrogates the privilege. Secondly, it specifically provides that answers which may otherwise have been privileged are not admissible in criminal proceedings other than proceedings under the section or other proceedings in respect of the falsity of the answer. Finally, it explicitly empowers the court to give directions concerning the examination. The second and third matters just mentioned are designed to reduce any element of unfairness to the witness that may arise as a result of abrogation of the privilege ...."

33 There are two difficulties in accepting this submission. First, as will be discussed below, the points of distinction between the statutory provision relied on in Hamilton v Oades and the Criminal Assets Recovery Act are not significant. Secondly, the significance of the factors set out by Mason CJ should be understood in context. He had (at 495) identified Mortimer v Brown as "a striking illustration of statutory abrogation of the privilege where the intention to abrogate was ascertained by necessary implication". The three points referred to above were identified as points of comparison with the relevant provision of the Companies Act 1961 (Qld) which had been held, absent any express abrogation of the privilege, to have had that effect by necessary implication. They were not, as counsel sought to argue before this Court, considerations which were necessarily critical to the conclusion reached in Hamilton v Oades, although they were no doubt important aspects of the exercise in statutory construction of s 541, regardless of the comparative exercise.

34 Once it is accepted that the legislature may authorise a scheme of investigation and inquiry which has the potential to diminish common law protections for an accused in criminal proceedings, the question becomes one of statutory construction: does the relevant legislation authorise such conduct and, if so, to what extent? Some assistance may be obtained in answering such questions from answers given in relation to other legislation having similar provisions, purposes or effects; however, the focus of the analysis must be the particular legislation in question, which in this case is the Criminal Assets Recovery Act.

35 Before leaving Hamilton v Oades, it is, nevertheless, helpful to note the manner in which the Court dealt with Hammond. In the judgment of the Chief Justice, Hammond was referred to only for the proposition that Parliament may diminish common law protections. In the dissenting judgment of Deane and Gaudron JJ, Hammond was cited as authority for the proposition that there must be a clear expression of legislative intent before the privilege against self-incrimination could be abrogated - at 500-501 - a matter not in doubt in that case. Dawson J, in the majority, referred to the central passage in the reasoning of Gibbs CJ in Hammond, noted that it had been preceded by the observation that the urgency had precluded the Court considering the liquidation cases and continued at 509:

"Moreover, the legislation in question in Hammond ... was of a different kind, being concerned in general terms with executive inquiry by means of a Royal Commission or Board of Inquiry without reference to subject matter or purpose."

36 Toohey J also gave limited effect to Hammond, referring to his earlier remarks when on the Federal Court, in Huston v Costigan (1982) 45 ALR 559 at 563: Hamilton v Oades at 515-516.

Provisions of Criminal Assets Recovery Act

37 The background, structure and purpose of the Criminal Assets Recovery Act has been the subject of analysis in a number of judgments of this Court, including New South Wales Crime Commission v Kelaita [2008] NSWCA 284; 75 NSWLR 564 (Allsop P, Giles and Bell JJA agreeing) and, by reference to the later Proceeds of Crime Act 2002 (Cth), in Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; 75 NSWLR 581. As Allsop P noted in Kelaita at [51]:

"Each of the Commonwealth and States has an Act comparable to the Criminal Assets Recovery Act. All of the Acts (except that of Tasmania) provide for confiscation in the absence of conviction. All the Acts (except that of Western Australia) follow a broadly similar pattern. All of the Acts (except that of New South Wales) make express provision for adjusting the amount of the equivalent of a proceeds assessment order by reference to the making of a forfeiture or similar order."

38 The important public purpose of the Criminal Assets Recovery Act is identified both in the long title and the statement of objects. The long title is in the following terms:

"An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime related activities; to enable proceeds of serious crime related activities to be recovered as a debt due to the Crown; and for other purposes."

39 Section 3 provides:

"3 Principal objects

The principal objects of this Act are:

(a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

...

(c) to enable law enforcement authorities effectively to identify and recover property."

40 Part 2 of the Act contains the principal operative provisions by which proceedings are commenced. Thus, s 10A provides for the Commission to apply to the Supreme Court for a restraining order and s 12 provides for the Supreme Court to make various forms of ancillary orders, including an order for the examination of a person on oath. Part 3 provides for the Commission to apply to the Court for an "assets forfeiture order": s 22(1). The Commission may also apply to the Court for an order that a person pay an amount assessed by the Court as the value of the proceeds of an illegal activity, known as a "proceeds assessment order" (s 27) or an "unexplained wealth order", requiring the person to pay an amount assessed as the value of any unexplained wealth of the person where there is a reasonable suspicion that the person had been engaged in serious crime related activity: s 28A. These last three orders are collectively referred to as "confiscation orders": s 4(1). The Act then provides for ancillary orders relating to a confiscation order:

"31D Additional orders where application made for confiscation order

(1) If an application is made for a confiscation order, the Supreme Court may, on application by the Commission, when the application for the confiscation order is made or at a later time, make any one or more of the following orders:

(a) an order for the examination on oath of:

(i) the affected person, or

(ii) another person,

before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest,

....

(2) The Commission must give notice of an application for an order under this section to the affected person.

(3) Sections 13 and 13A apply in respect of a person being examined under an order under this section in the same way as they apply in respect of a person being examined under an order under section 12 (1)."

41 Although the Criminal Assets Recovery Act is detailed and far reaching in its scope, reference to these provisions is sufficient to demonstrate how its purposes are to be effected. The application before the primary judge was brought pursuant to s 31D. There was no suggestion that the power was not engaged, nor that the section was not, in its terms, constitutionally valid. Thus, the refusal of the primary judge to make the orders sought against the respondents flowed from what was described as "the discretion" not to exercise the power conferred.

42 Critical to the operation of the power are two further provisions. First, there are the provisions relating to the privilege against self-incrimination identified in s 31D as applicable in respect of a person being examined pursuant to an order under that section. As originally enacted, self-incrimination was dealt with in s 13,. In 2005 self-incrimination was removed from s 13 and dealt with separately in s 13A which now provides, so far as relevant:

"13A Privilege against self-incrimination

(1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty.

(2) However, any answer given or document produced by a natural person being examined under section 12 is not admissible in criminal proceedings (except proceedings for an offence under this Act or the regulations) if:

(a) the person objected at the time of answering the question or producing the document on the ground that the answer or document might incriminate the person, or

(b) the person was not advised that the person might object on the ground that the answer or document might incriminate the person.

(3) Further information obtained as a result of an answer being given or the production of a document in an examination under section 12 is not inadmissible in criminal proceedings on the ground:

(a) that the answer had to be given or the document had to be produced, or

(b) that the answer given or document produced might incriminate the person."

43 Three aspects of this provision are significant. First, it expressly removes the operation of the general law principle that a person cannot be compelled to answer a question on the ground that the answer might incriminate or tend to incriminate the person. Secondly, it provides what is commonly described as "use immunity" for the answer, so long as objection was taken at the time of answering on the ground of self-incrimination. Thirdly, there is an express rejection of what is commonly described as "derivative use immunity". The legislature evidently gave consideration to the consequences of removing the immunity from self-incrimination. There was no attempt to condition the removal of the immunity upon the existence or otherwise of outstanding criminal charges. No doubt that was because the confiscation of assets did not depend on a criminal conviction and, even if charges have not been laid, they might be laid in the future. The possibility, at least, of criminal charges was recognised by the conferral of use immunity in sub-s (2).

44 In respect of the third point, what is significant is not merely the rejection of such an immunity, but the fact that it was expressly addressed. The legislature evidently appreciated that answers given under compulsion might "set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character": Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 (Lord Wilberforce). The decision not to preclude the use of such information may have followed the reasoning of Mason CJ in Hamilton v Oades at 496:

"Of course [s 541 of the Companies Code] gives no protection to the witness against the use in criminal proceedings of derivative evidence, ie, evidence which is obtained from other sources in consequence of answers given by the witness in his examination. It would be difficult for Parliament to provide for specific protection against derivative use of such answers given by a witness. Immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is derivative .... But in any case, by enacting s 541 without providing such specific protection, Parliament has made its legislative judgment that such action is not required and has limited specific protection to the possible consequences of direct use in evidence of the answers of the witness, thereby guarding against the possibility that the witness will convict himself out of his own mouth - the principal matter to which the privilege is directed."

45 In Hamilton v Oades, the legislative regime provided by the Companies Code left open the possibility that a court might adjourn an examination in circumstances where there were outstanding criminal proceedings. The point at which the minority departed from the majority was whether it was open to the Court of Appeal to order an adjournment to avoid a real risk of challenge to the fairness and integrity of the criminal proceeding. The majority held that an adjournment for that purpose should not have been granted. Mason CJ held that although the Court had a range of powers available to it to control the examination, adjournment pending completion of the criminal proceedings was not an order of the kind permitted: at 499.

46 The second additional provision in the Criminal Assets Recovery Act which provides a strong basis for the same conclusion in this case is s 63, which states:

"63 Stay of proceedings

The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings."

47 The respondents submitted that this case did not involve a "stay". That was no doubt true, but addressed only one aspect of the legislative purpose. As senior counsel for the Commission remarked, the refusal of orders effected a de facto stay. The statutory purpose revealed by s 63 is not to be ignored because the procedure in a particular case involves an adjournment application, an application to revoke or set aside an order, or the resistance to the making of the order in the first instance, rather than a stay. If the fact of criminal proceedings is "not a ground" to stay an examination under s 31D, it should not be an available ground for resisting or delaying examination on any other procedural basis. Further, the purpose is not avoided by arguing that the real ground is the risk of prejudice to a criminal proceeding, rather than the fact that such a proceeding is on foot. The latter should be understood to encompass the former and any variation on it.

48 Finally, the respondents contended that the statutory purposes revealed by the Criminal Assets Recovery Act should not be equated with the public interest in an expeditious examination of a company officer pursuant to the statutory scheme under consideration in Hamilton v Oades. While it is true that the public interest in question differs, there is no basis for concluding that the public interest in respect of a company liquidation or an individual bankruptcy, which is primarily directed to the recovery of sufficient assets to repay creditors, is to be weighed against the public purpose of depriving those who benefit from criminal activities of the proceeds of those activities in a way which discounts the latter interest as against the former.

49 The appropriate conclusion is that the statutory purposes revealed by the Criminal Assets Recovery Act were intended to be available and proceedings to give effect to them were intended to be maintained despite the possibility of adverse consequences for criminal proceedings otherwise on foot.

Procedural safeguards

50 One further factor which should be addressed, because relied upon by the respondents in support of the refusal to make examination orders, was the supposed absence of appropriate procedural protections which might prevent an examination becoming an abuse of power. Again, the substance of the argument was presented by way of contrast with the circumstances revealed in Hamilton v Oades.

51 Reference was made to the provision in s 541(5) of the Companies Code under consideration in Hamilton v Oades, which permitted the court, either when ordering an examination or at any later time, to give "such directions as to the matters to be inquired into, and ... as to the procedure to be followed (including, in the case of an examination in private, directions as to the persons who may be present), as it thinks fit". By reference to that provision, Mason CJ noted that "if a liquidator were to conduct an examination directed to compel the examinee to disclose defences or to give pre-trial discovery, or to establish guilt, this examination may be restrained as an abuse of process": at 498. His Honour expanded on the powers available to the Court in such circumstances at 499:

"For example, an examination may need to be held in private, or the publication of names or evidence restricted .... Or it may be that the court in conducting the examination may feel it necessary, in accordance with the statutory purpose, not to permit a particular question to be asked which would prejudice the examinee's fair trial ...."

52 While Mason CJ held that it was not appropriate to invoke such powers in advance of the questions being asked, the respondents contended that the Court, in holding an examination under s 31D, did not enjoy powers of the kind which were held to be available in Hamilton v Oades.

53 The submission should be rejected for three broad reasons. First, there is no reason to suppose that s 541(5) conferred any greater powers on the court conducting an examination than would otherwise have been available. Secondly, there was no attempt to identify what limitations, if any, distinguished the powers of the court in conducting such an examination, as compared with the usual powers now available under the Uniform Civil Procedure Rules and the inherent powers of the Supreme Court to ensure that its processes are not abused. Indeed, there was no attempt to address the scope of the available powers at all.

54 Thirdly, reference was made to the fact that the order sought an examination on oath before a registrar of the Court. Again, the assumption appears to have been that the powers of a registrar, whilst exercising the jurisdiction of the Court, were in some way restricted. No such possibility occurred, apparently, to any party or judge involved in Hamilton v Oades, where the examination was held before a Deputy Registrar of the Supreme Court. Assuming, as senior counsel for the Commission stated without contradiction, that power has now been conferred on the registrars of the Court to conduct examinations under s 31D, there was no explanation as to why in exercising the "powers of the Court", a registrar, who would constitute the Court for that purpose, did not have all the powers referred to in Hamilton v Oades and, no doubt, other powers: see Supreme Court Act 1970 (NSW), ss 121 and 120A; the Civil Procedure Act 2005 (NSW), s 13 and Uniform Civil Procedure Rules 2005 (NSW), Sch 10, Criminal Assets Recovery Act 1990, item 2.

Reasoning of primary judge

55 The reasoning of the primary judge was erroneous in two respects. First, he approached the availability of derivative evidence as increasing the risk of prejudice to a fair trial if an examination were to go ahead, subject only to the availability of a non-publication order under what was then s 62 of the Criminal Assets Recovery Act (before the section's repeal and replacement by the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the Suppression Orders Act")) and the fact that s 62 did not go as far as s 25A of the Australian Crime Commission Act. That approach was erroneous. It failed to consider whether the statutory scheme, revealed in part in the combination of s 13A(2) and (3), authorised such conduct, despite the fact that it might impinge on future criminal proceedings. Further, the reasoning failed to distinguish between the different regimes for examination and protection of information, when carried out by an officer of the Commission and by a judicial officer.

56 Secondly, having distinguished Australian Crime Commission v OK, his Honour stated that "the circumstances here are thus governed by the decision in Hammond": at [20]. For the reasons indicated above, that statement failed to consider the extent to which the Recovery Act permitted a degree of potential interference with a criminal trial and precluded judicial intervention to prevent such interference. In particular, the relevance of s 63 of the Recovery Act was neither identified nor considered.

57 The matter having been approached on an erroneous basis, the decision should be set aside.

Authority in other courts

58 The respondents contended that, in the event this Court reached the conclusion set out above, it should overrule or decline to follow authorities which supported such a conclusion. That submission did not, of course, extend beyond decisions of single judges or appellate courts below the High Court. Because the conclusion is based on the proper construction of the statute and the application of principles derived from decisions of the High Court, the question of departing from earlier decisions does not arise. Nevertheless, given the nature of the submissions and the criticisms made of earlier decisions, it is appropriate to explain why the reasoning set out above is consistent with earlier authorities.

59 The primary focus of the respondents' challenge was directed to the reasoning of the majority (Emmett and Jacobsen JJ) in Australian Crime Commission v OK (above at [21]). In substance, the respondents sought to adopt the reasoning of Spender J in dissent. The dissent, however, was underpinned by the conclusion that the reasoning in Hammond was to be applied and that "the right to silence at trial exists as a common law right": at [35]. No reference was made to Hamilton v Oades, nor was there the kind of statutory analysis which might have belied the universality of the statement at [35]. Beyond supporting the reasoning of Spender J, no error was identified in the approach of the majority, which may be accepted as correct, at least with respect to the operation of the Australian Crime Commission Act.

60 A second contention of the respondents was that Emmett and Jacobsen JJ appeared to place significant weight on the fact that the "examiner" was required to hold the examination in private and could give directions as to who was to be present (s 25A(3)) and could direct that evidence given in the course of the examination not be published. Based on the view that the safeguards provided by s 25A(9) were available and an appropriate direction could be made, the majority concluded that there was "no real risk to the fair trial" of the person being examined: at [113]. By contrast, the respondents submitted that in the present case there was no equivalent to s 25A(9) and, in particular, the requirement that the examiner "must give" a direction as to the non-publication of the evidence "if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence".

61 The respondents compared this provision with the relevant provisions under State law, relating to non-publication, which are now to be found in the Suppression Orders Act. The respondents submitted that there was now a presumption against a suppression order (s 6) and a requirement that the court could only make such an order if it were "necessary" to prevent prejudice to the proper administration of justice: s 8(1)(a).

62 Two points should be made in this regard. First, the New South Wales Crime Commission Act 1985 (NSW) s 13(9) confers on the Commission a power to restrict publication in terms relevantly identical to s 25A(9) of the Commonwealth Act. This provision has not been replaced by the Suppression Orders Act (which does not apply to hearings conducted by the Commission), no doubt for the reason that a different and stricter regime of privacy is to be applied by the Commission in exercise of its powers of investigation. By contrast, the proceedings under the Criminal Assets Recovery Act are conducted before a judicial officer, be it a judge or registrar, of the Supreme Court. Secondly, the Suppression Orders Act is not intended to preclude the making of appropriate orders in appropriate cases. For example, there is no reason to suppose that the names of informers will not be protected as they have been in the past. If, as the respondents contend, the questions asked and answers given during an examination under the Criminal Assets Recovery Act would, were they to be revealed, prejudice a future criminal trial, there is no reason to suppose that a relevant order will not be made under s 8(1)(a) or (e), or both.

63 The more significant lesson for these proceedings is, as noted by McCallum J in Hung Sun Choi (see [22] above), that although the reasoning in Australia Crime Commission v OK should be accepted, the legislative regime is different and the relevant State Act must be analysed in its own terms. The difference between the powers and function of an inquiry before an officer of the executive branch of government and an inquiry before a judicial officer of the Supreme Court has significant weight.

64 It should also be noted that, for the reasons set out above, McCallum J was correct in declining to follow the judgment of the primary judge in the present case: at [35].

65 To the extent that Australian Crime Commission v OK did affect the outcome in the present case, the respondents face a formidable and additional hurdle, the reasoning of the majority having been accepted by the Court of Criminal Appeal in R v CB (see [22] above) at [108]. This Court would not decline to follow a judgment of the Court of Criminal Appeal in these circumstances, unless persuaded it was clearly wrong. (There are occasions on which the Court of Criminal Appeal has been clearly wrong: the suggestion that its obligation in respect of judgments of this Court was merely to have "great regard for a carefully considered decision of the Court of Appeal" was erroneous when stated - see R v Masters (1992) 26 NSWLR 450 at 472D-E (Hunt CJ at CL, Allen and Badgery-Parker JJ) - and certainly cannot stand since the decision of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89.)

66 It is sufficient to note that there is no decision of a court of co-ordinate status in the judicial hierarchy which requires or even supports a contrary conclusion to that reached above.

Re-exercise of discretion

67 The parties raised the possibility that if error were found on the part of the primary judge, this Court might consider it appropriate either to exercise the power itself (or decline to do so) or remit the matter for further consideration in the Common Law Division. Accepting that the Court might well adopt the former approach, the respondents filed additional material, mentioned above, on which they relied in order to resist an order under s 31D. As explained below, neither the material tendered on the appeal, nor the circumstances relied upon before the primary judge, have any significant impact on the exercise of the power. Accordingly it is appropriate that this Court exercise the power without further delay.

68 The gravamen of the additional material may be briefly stated. The relevant material was, primarily, the transcript of the first day of a District Court trial of the respondents which commenced on 23 November 2010 before Solomon DCJ (but was later aborted). The trial judge raised with the prosecutor a question as to how it was intended that the prosecution would deal with evidence relating to the funding of a company of which one of the respondents was the principal. The problem his Honour identified was "why the company cash position is relevant to the possession and deem[ed] supply of the drugs": Tcpt, 23/11/10, p 2 (25). In response, the prosecutor noted that there was little for him to go on as to how the defence would be run, but noted that both accused had been examined by the Commission and from that material the prosecution had gained "an idea where they might be heading in terms of" their defence. In the result, the trial judge separated the money laundering offence, which was fixed for a later hearing.

69 The relevant aspect of the transcript was its revelation that records of interviews by the Commission had been made available to the prosecution and, it appears, had then been served on the accused as part of the disclosure obligation of the prosecution. Perhaps unnecessarily, the respondents had then subpoenaed the Commission to produce its records, which was also done. The next step in the argument was that the transcript of the interview between the Commissioner and the respondent Jason Lee included advice to him that the proceedings "are in secret and they're being recorded on audio-visual equipment": Tcpt, 26/11/09, p 2. The transcript recorded that the Commissioner gave a direction immediately the respondent was sworn that his evidence "shall not be published except in such manner and to such persons as the Commission specifies": Tcpt, p 3. The respondent objected to being required to answer questions, as a result of which the respondent was told by the Commissioner that "the answers you give cannot be used against you in criminal proceedings": Tcpt, p 4.

70 Reliance was placed on this material apparently for the proposition that, although the respondent had been assured that the proceedings were "secret", that his evidence would not be published and could not be used in criminal proceedings, and that a non-publication order applied, he was nevertheless confronted one year later, at his criminal trial, with a copy of his interview, which was used by the prosecution to adjust its evidence on the basis of what the interview appeared to disclose as to his proposed defence. This was said to demonstrate an improper use of the material by the Commission.

71 The additional evidence tendered by the Commission confirmed, in effect, that the Commissioner had, in May 2010, approved release of the examination transcripts for the respondents to the police and, in July 2010, had further approved their dissemination to the Director of Public Prosecutions. It was unclear on what basis the respondents asserted that the release of the material was unlawful or improper. On one view, it was the fact of the release rather than its impropriety which may have assisted their case. In other words, the fact that such material might lawfully be released was as relevant as, if not of greater relevance than, the inference that on a particular occasion material had been released without proper authority.

72 On the other hand, if the release were lawful, the respondent would need to explain why the conduct of a State investigatory officer, acting within statutory powers, could be taken to involve an unlawful interference with the administration of criminal justice. The correct analysis, as explained above, was that the legislature had weighed competing public interests and had determined that the relevant powers should be conferred and should be available despite the possible consequences for an accused in criminal proceedings not yet completed.

73 The respondents faced a further difficulty in relying on this material. As already noted, the statutory regime pursuant to which an officer of the Commission could carry out an investigation and interview a person on oath was not the same as the statutory scheme under the Criminal Assets Recovery Act, which involved examination before a judicial officer of the Supreme Court. In particular, the provisions of the Crime Commission Act which prevented a witness refusing to answer questions on the basis that the answers might incriminate him or her were different in form to the provisions of the Criminal Assets Recovery Act: see Crime Commission Act, ss 18(2)(b), 18B(1), (2) and (3)(b); Criminal Assets Recovery Act, s 13A. In particular, the Crime Commission Act did not expressly deal with derivative evidence nor did it contain a provision equivalent to s 63. On the other hand, the Criminal Assets Recovery Act did not have the same provisions in respect of non-disclosure orders and requirements for authorisation for disclosure. Accordingly, evidence as to what happened in respect of interviews conducted by the Commission in the exercise of executive power was of limited value in determining whether an order should be made for examination of the respondents under the Criminal Assets Recovery Act.

74 In the final analysis, the submissions of the respondents amounted to no more than that they should not be subject to compulsory examination under the Criminal Assets Recovery Act because, in the case of one, his trial on money laundering charges was still outstanding and, with respect to both, there were appeals against conviction in respect of the drug supply charges, which, if successful, might result in a retrial.

75 Perhaps by way of a final consideration, which might tip the balance against an order if that were otherwise considered appropriate, the respondents submitted the Commission had not demonstrated that there was relevant property which it had been unable to locate and that, given the lapse of time since the respondents first gave evidence to the Commission (now almost three years) some further delay in their examinations would not undermine the purposes of the Criminal Assets Recovery Act or its operation in these particular circumstances.

76 The Commission took issue with each of these grounds for refusing to order an examination of each respondent. With respect to the information sought, it noted that the restraining orders extended to all the property of each respondent, "including the interest in property ... described in" the schedules to the orders. That property was extensive, but the Commission did not know whether it was a comprehensive list of the interests in property covered by the order. It was possible that there were interests held in other names and it was that possibility which the Commission was, in the proper exercise of its functions, entitled to explore.

77 With respect to delay, the Commission noted that its application for restraining orders and orders for examination under s 12 of the Criminal Assets Recovery Act had first been made on 13 May 2010. Those orders had been made ex parte, but Mr Jason Lee had sought to have them set aside. On 10 June 2010, the Commission had filed its notice of motion seeking orders inter partes for examination pursuant to s 31D of the Criminal Assets Recovery Act. The following day, the respondents (and another party) had filed a summons seeking leave to appeal against the ex parte orders. The hearing of the motion the subject of these proceedings had occurred on 28 June 2010, approximately six weeks after the first application and within three weeks of the motion for orders under s 31D. A delay of eight months occurred whilst the Court was reserved in respect of its decision.

78 Within a matter of days of the refusal by the primary judge to make the orders in respect of the respondents, the Commission had filed a notice of intention to appeal to this Court. A summons seeking leave to appeal was filed on 30 May 2011. Before that summons was listed for hearing, namely on 21 June 2011, the Commission had sought further orders in the Common Law Division. Six weeks later, on 10 August 2011, that application was dismissed by Garling J as an abuse of process, as noted above. The application for leave to appeal was in fact listed before this Court in December 2011, but the hearing was aborted when it became apparent that there was a challenge to a decision of the Full Court of the Federal Court which should properly be dealt with by a bench of five. It followed, the Commission submitted, that there had been no dilatoriness or delay in the steps taken by it, and the lapse of time did not provide a reason why the order it sought and, on its arguments, had been wrongfully denied, should not now be made.

79 Thirdly, in relation to the material relied upon before this Court, referable to the first trial of the respondents, the Commission submitted that the circumstances in which the interviews conducted by an officer of the Commission had been disclosed to the police and the Director of Public Prosecutions did not demonstrate any impropriety on the part of the Commission, but were in any event irrelevant to the exercise of the power to grant an examination order under the Criminal Assets Recovery Act.

80 The Commission's submissions in each respect should be accepted. Although it was the Commission itself which had conducted the first interviews under its own Act in November and December 2009, there was no suggestion that it was thereafter precluded from seeking to have an officer of the Supreme Court conduct an examination under the Criminal Assets Recovery Act. That order having been sought, first ex parte in May 2010 and later inter partes in June 2010, there was no relevant delay at that stage. Arguably the Commission could have acted more expeditiously in seeking leave to appeal, but, in the circumstances which followed that application, it is unlikely that an application for leave to appeal lodged four-six weeks earlier would have achieved a significantly earlier hearing before this Court.

81 The possibility that an examination at this stage could interfere with the trial of the respondent Jason Lee, which is apparently listed for hearing in October, and the possible retrial of both in respect of the drug supply charges, is speculative. If a real risk of prejudice is revealed in the course of the conduct of the examination, there is no reason to suppose that the registrar before whom the examinations take place will not have powers available to diminish or prevent that prejudice, to the extent that it is beyond the prejudice authorised by the Criminal Assets Recovery Act.

82 In these circumstances, there is no reason not to make the order sought by the Commission.

Conclusions

83 The Court should make the following orders:

(1) In addition to the orders made by RS Hulme J in the Common Law Division on 28 February 2011 -

order that the notice of motion filed by the Commission on 10 June 2010 be otherwise dismissed, such order to take effect from 28 February 2011.

(2) Grant leave to appeal and direct that the appellant file within seven days a notice of appeal in the form of the draft notice contained in the white folder.

(3) Allow the appeal and set aside the additional order identified in (1) above.

(4) Pursuant to s 31D(1)(a) of the Criminal Assets Recovery Act 1990 (NSW), order that:

(a) Jason Lee (aka Do Young Lee) be examined on oath before a registrar concerning his own affairs, including the nature and location of any property in which he has an interest, on a date and at a time to be fixed by the registrar.

(b) Seong Won Lee be examined on oath before a registrar concerning the affairs of Jason Lee (aka Do Young Lee) or Elizabeth Park, including the nature and location of any property in which Jason Lee (aka Do Young Lee) or Elizabeth Park has an interest, on a date and at a time to be fixed by the registrar.

(5) Order that the respondents pay the Commission's costs in this Court.

(6) Grant the respondents certificates under the Suitors' Fund Act 1951 (NSW) in respect of the costs of the appeal.

84 MACFARLAN JA: I agree with the orders proposed by Basten JA and with his Honour's reasons, together with those of Beazley and Meagher JJA.

85 MEAGHER JA: I agree with the orders proposed by Basten JA and can state my reasons for doing so fairly shortly.

86 The question for the primary judge was whether to exercise the discretion given by s 31D of the Criminal Assets Recovery Act 1990 to make orders for the examination on oath of the two respondents, Jason Lee and Seong Won Lee. At the time the primary judge heard the application the respondents were awaiting trial on drug and firearm charges. Each has since been convicted of those charges and has appealed against those convictions. Jason Lee is also awaiting trial on a further charge of money laundering.

87 The stated objects of the Criminal Assets Recovery Act include to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime-related activity; to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired and held in a false name or is not declared in confiscation proceedings; and to enable law enforcement authorities effectively to identify and recover such property: s 3(a), (b1) and (c).

88 Section 31D, like s 12(1)(b), provides for the examination of a person on oath before the Supreme Court, or an officer of the Court, concerning the affairs of that person (either as an "affected person" within s 31D(4) or as owner of an interest in property that is the subject of a restraining order), including the nature and location of any property in which the person has an interest. Those sections also provide for the examination of other persons concerning the affairs of that affected person or owner.

89 Any examination under s 12(1)(b) or s 31D is subject to s 13A which removes the privilege against self-incrimination and gives an immunity in criminal proceedings from use of answers given or documents produced, but does not give any immunity in respect of the use of further information obtained as a result of answers given or documents produced.

90 The primary judge declined to make orders for the examination of the respondents whilst there remained outstanding charges against them, reasoning as follows: NSW Crime Commission v Lee [2011] NSWSC 80 at [16]-[19]. First, referring to Hammond v Commonwealth of Australia [1982] HCA 42; 152 CLR 188, there is a general principle that a person is not obliged to incriminate himself or herself; secondly, given the existence of that principle, an examination in the terms sought would permit questioning in respect of matters relevant to the outstanding charges against the respondents and create a real risk of interference with the administration of justice; and thirdly, that that real risk was not removed in relation to the use of further information obtained as a result of answers given or documents produced (often described as indirect or derivative use) because whilst s 62 of the Act gave the Court power to give a direction limiting publication of answers or documents (and thereby the use to which they could be put), it did not require the Court to make such an order. In relation to this third consideration, the primary judge sought to distinguish the reasoning of Emmett and Jacobson JJ in Australian Crime Commission v OK [2010] FCAFC 61; 185 FCR 258 on the basis that s 25A(9) of the Australian Crime Commission Act 2002 (Cth) required the examiner to give a non-publication direction if the failure to do so might prejudice the fair trial of a person charged with an offence.

91 His Honour's decision not to make those orders involved the exercise of a discretion to which the principles in House v The King [1936] HCA 40; 55 CLR 499 apply.

92 In exercising that discretion the primary judge did not give effect to the relevant provisions of the Criminal Assets Recovery Act which, in their abrogation of the privilege against self-incrimination, are similar to those considered by the High Court in Hamilton v Oades [1989] HCA 21; 166 CLR 486. His Honour does not appear to have been referred to that decision.

93 The privilege against self-incrimination protects against the consequences of indirect or derivative use of information given or documents produced as well as against direct use: Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443; Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 at 293-294; Hamilton v Oades at 493-494, 503. That privilege can be abrogated by clear legislative intention: Hammond at 197-198, 200; Sorby at 289-290, 294-295, 309, 311; Hamilton v Oades at 495, 500-501, 509.

94 Where the Parliament, in furtherance of a particular public interest, has abrogated the privilege against self-incrimination, effect must be given to the statutory provisions which do so: Rees v Kratzmann [1965] HCA 49; 114 CLR 63 at 80; Mortimer v Brown [1970] HCA 4; 122 CLR 493 at 495, 499; Hamilton v Oades at 494-495, 507. Such provisions, as is the case with companies legislation enabling the examination of directors, may expressly authorise the obtaining by compulsory examination of evidence and information to support the bringing of criminal charges: Mortimer v Brown at 496, 499; Hamilton v Oades at 496.

95 In Hammond, on which the primary judge relied, the High Court dealt with the urgent injunction application on the basis that whilst there may have been a limited abrogation of the privilege against self-incrimination by the relevant legislation, the issue remained whether there was a real risk that the administration of justice could be interfered with because of the possible indirect use of information obtained: Hammond at 196, 198, 199, 202, 207. There was no consideration of cases such as Rees v Kratzmann or Mortimer v Brown and whether the legislation authorised or sanctioned the relevant conduct notwithstanding that it involved such a risk.

96 Section 13A expressly abrogates the privilege against self-incrimination. It provides specific protection against direct use of answers given or documents produced by providing that they are not admissible in criminal proceedings. It also provides for the examination to take place before the Court, or an officer of the Court, which is a safeguard against the examination being conducted for an improper purpose or in a way which constitutes an abuse of process: Mortimer v Brown at 499; Hamilton v Oades at 498. At all times relevant to the decision of the primary judge, s 62 (which was repealed with effect from 1 July 2011) gave the Court power to make "such orders as it thinks fit with respect to the publication" of any matter arising under the Act. That power was in addition to the Court's inherent power to ensure the proper administration of justice which could be exercised by requiring that the examination be held in private and/or that the publication of names or evidence be restricted: Hamilton v Oades at 498-499, 502, 516.

97 The power given by s 31D is in aid of an application for a confiscation order which includes an asset forfeiture order. To obtain such a forfeiture order it is necessary that there is a finding of the Supreme Court on the balance of probabilities either that the person whose assets are the subject of the proposed order has engaged in serious crime-related activity (s 22(2)); or that the property or its acquisition was as a result of serious crime-related activity (s 22(2A)). The legislation contemplates, as its objects make clear, that examinations in aid of the making of such orders will take place in circumstances which include that the person being examined has been charged with a serious criminal offence (as defined in s 6) and that proceedings on that charge have been commenced but not completed.

98 That this is so, is confirmed by s 63 which provides that the fact that criminal proceedings have been instituted or commenced is not a ground on which the Court may stay proceedings under the Act that are not criminal proceedings. As Basten JA observes, the statutory purpose revealed by that section is not to be ignored because the procedure in a particular case involves an application to set aside an order or to adjourn an examination or to resist the making of an order for an examination.

99 The position under the Act is in many respects similar to the legislative regime considered in Hamilton v Oades. Section 13A gives no specific protection to the examinee against the use in criminal proceedings of further information obtained as a result of answers given or documents produced. However, by not providing specific protection against that use (and by providing expressly that such information is "not inadmissible"), the Parliament has made its legislative judgment that specific protection against the risk of that use is not required. The protection to the examinee against any such derivative use is provided by requiring that the examination take place before the Supreme Court, or an officer of the Court, having in addition to the express power given by s 62, the inherent power to ensure the proper administration of justice. The orders which the Court, or any officer of the Court, could make are (with the repeal of s 62 and its replacement by the Court Suppression and Non-Publication Orders Act 2010), a suppression or non-publication order under s 7 of that Act, on the grounds in s 8(1)(a) or (e), or an order restricting the publication of evidence in exercise of its inherent jurisdiction; which is not affected by that Act: s 4.

100 There was not identified by the primary judge or in argument before this Court any fact or circumstance justifying the decision of the primary judge to decline making the orders for examination in circumstances where there were outstanding charges other than that there was a risk that answers given in the examination might be the source of information used in some way in relation to the subsequent trials. The existence of that risk was an insufficient basis for declining to make the order sought.

101 The exercise of the discretion arises in a context where the Act provides for an examination to take place notwithstanding that there remain risks of adverse consequences in relation to criminal proceedings which have been commenced but not completed. In such circumstances, the Act gives protection to the examinee in the form of the Court's power to control and supervise the examination. The discretion to order an examination should not be exercised on the basis that the Court, or officer of the Court before whom the examination takes place, may in the conduct of the examination decline to make a non-publication order in respect of specific questions or subject matter. To do so would disregard the legislative intent that any such risks be addressed in that way: Hamilton v Oades at 496. In not approaching the matter on this basis the primary judge erred.

102 None of this analysis is inconsistent with the reasoning of the majority in Australian Crime Commission v OK which was accepted by the Court of Criminal Appeal in R v CB; MP v R [2011] NSWCCA 264 esp at [110]; or the correctness of the decision of McCallum J in New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658.

103 It is appropriate that this Court exercise the power under s 31D afresh rather than remit the matter to the Common Law Division. For the reasons given by Basten JA I agree that the discretion should be exercised by making the order sought by the Commission.

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Amendments

12 December 2013 - Amending typographical errors
Amended paragraphs: [14], [15], [44], [45], [71]

Decision last updated: 12 December 2013