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.