Lee v The Queen

Anna Dziedzic, ‘The Third Part in a Trilogy on the Accusatorial Trial: Lee v The Queen‘ (17 June 2014).

The High Court has unanimously allowed two appeals against the decision of the NSW Court of Criminal Appeal in Lee v The Queen. The appellants were convicted of firearms and drug offences, and appealed that conviction on the grounds that their prosecutor received a transcript of earlier compelled questioning, contrary to a non-disclosure order made by the NSW Supreme Court. The NSWCCA rejected their appeal, and held that the disclosure did not prejudice the fairness of their trial, and dismissing other appeal arguments on directions to the jury.

The Court held that s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) requires the Commission to make a direction prohibiting publication of evidence heard by it if the publication might prejudice the investigated person’s fair trial. The Court noted, at [28], that a risk of prejudice requires that such an order be made. The Commissioner must assess that risk objectively, and carefully consider the protective purpose of the duty to make the direction: ‘A decision, inconsistent with that duty or purpose, to publish transcripts or documents which were, or should have been, the subject of such a direction would not be a decision which the Commission was empowered by the Act to make.’ The decision to allow publication of transcripts of the appellants’ evidence to the Commission without regard to the protective purpose of s 13(9) was not authorised by the Act. This disclosure gave the police and the DPP unlawful access to that evidence, which fundamentally altered the appellants’ trial and led to a miscarriage of justice that requires that the appellants be retried.

High Court Judgment [2014] HCA 20 21 May 2014
Result Appeal allowed, retrial ordered
High Court Documents Lee v The Queen
Full Court Hearing [2014] HCATrans 69  3 April 2014
Special Leave Hearing [2013] HCATrans 314 13 December 2013
Appeal from NSWCCA [2013] NSWCCA 68 3 April 2013
Trial Judgment, NSWDC
DC 2009/276079; DC 2010/119443; DC 2009/280798 16 March 2011
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

1 thought on “Lee v The Queen

  1. After X7 v ACC and Lee v NSWCC, it is refreshing to see the Judges pull together and write a single judgment on this topic.

    As a matter of policy, I also think the Court now has the right balance. Looking at Hammond, Hamilton, X7 and the 2 Lee cases it would seem:

    – Examinations of accused persons on matters the subject of their pending charges can occur (for intelligence or confiscations purposes); and
    – The transcripts must be quarantined from the prosecutors.

    This balance ensures that the criminal trial process is protected. But it does not elevate criminal prosecutions as somehow more important than confiscation and intelligence gathering.

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