By Anna Dziedzic
Lee v The Queen Case Page
In the past year, the High Court has handed down three decisions dealing with the relationship between the compulsory examination powers given to various Australian crime commissions and the principles of a fair criminal trial.
In X7 v Australian Crime Commission  HCA 29, a majority of the Court held that the compulsory examination powers given to the Australian Crime Commission did not permit the ACC to examine a person charged with an offence about matters relating to the criminal charges that he or she was facing. A compulsory examination in these circumstances would fundamentally depart from the accusatorial nature of Australia’s criminal justice system. The judges in the majority refused to interpret the Australian Crime Commission Act 2002 (Cth) as working such a fundamental change to common law principles.
In Lee v NSW Crime Commission  HCA 39 (Lee #1) the High Court considered the same issue but in relation to different legislation. In Lee #1 a majority of the Court held that the Criminal Assets Recovery Act 1990 (NSW) did permit a compulsory examination on matters relating to pending criminal charges. In this case, the majority considered that the words of the statute clearly disclosed an intention to abrogate the right to silence while providing adequate safeguards to ensure that any future criminal trial was conducted fairly.
The third and most recent case on this issue was decided last month. Lee v The Queen  HCA 20 (Lee #2) saw the appellants in Lee #1 return to the High Court to appeal their convictions for drug and firearms offences. In a unanimous judgment, the High Court held that the appellants had not received a fair trial because confidential transcripts of their compulsory examinations before the NSW Crime Commission had been given to the Director of Public Prosecutions to assist it to prepare the prosecution’s case. The High Court held that this was a fundamental departure from the requirements of the accusatorial trial and resulted in a miscarriage of justice.
The decision in Lee #2 has been welcomed as a victory for the right to silence. In this post, I suggest that while Lee #2 does uphold the common law principles which guide the role of the prosecution in criminal trials, the case does not fully resolve the questions that arise from the close relationship between the state authorities that investigate crime and those that prosecute it. Continue reading
By Anna Dziedzic
Lee v New South Wales Crime Commission Case Page
In Lee v New South Wales Crime Commission  HCA 39, the High Court split 4:3 on the application of the ‘principle of legality’ — a rule of statutory interpretation which requires parliament to use clear statutory language if it intends to restrict fundamental rights or depart from general principles of law. This post attempts to trace whether the differences between the members of the Court reflect merely a different interpretation of the NSW crime legislation in question, or lie at the deeper level of the rationale and operation of the principle of legality.
NSW’s criminal assets recovery legislation
Father and son Jason Lee and Seong Won Lee were arrested for money laundering, drugs and firearms offences. After they were charged — but before the completion of their trial — the NSW Crime Commission applied to the NSW Supreme Court for various orders under the Criminal Assets Recovery Act 1990 (NSW).
This Act sets out a scheme for the confiscation of property if the Supreme Court finds it ‘more probable than not’ that a person has engaged in serious crime related activity (s 3(a)). There is no requirement for the person to have been convicted of a criminal offence.
Section 31D authorises the Crime Commission to seek orders for the examination of a person about the person’s affairs or those of another. Such examinations are to be held before the Supreme Court. During an examination, the person must provide information even if it tends to incriminate him or her, but such information is not admissible in criminal proceedings (s 31A). In other words, the legislation abrogates the privilege against self-incrimination but provides ‘direct use’ immunity.
The Crime Commission applied for an order that Jason Lee and Seong Won Lee be examined on oath before the Court. The Judge hearing the application refused to make the order on the grounds that it would expose the Lees to questioning about matters relevant to the criminal charges they were facing, creating a real risk of interference in their ongoing criminal trials. The NSW Court of Appeal overturned this decision. Jason and Seong Won Lee then appealed to the High Court. Continue reading
By Anna Dziedzic and Sophie Walker
Magaming v The Queen Case Page
There is only one set of offences under federal law that attracts a mandatory sentence, and perhaps unsurprisingly these offences all relate to people smuggling. Upon conviction of a crime of aggravated people smuggling under the Migration Act 1958 (Cth), the sentencing judge must impose a jail term of at least five years. In Magaming v The Queen  HCA 40, six of the seven judges of the High Court upheld the validity of this mandatory sentencing provision under the Australian Constitution. But this is only part of the story. After all, the principal character is Bonang Darius Magaming, a 19 year old Indonesian fisherman who was recruited to steer the boat which carried 52 asylum seekers to Australia. On 6 September 2010, his boat was detained by the Australian Navy near Ashmore Reef. Mr Magaming pleaded guilty to the aggravated offence of smuggling at least five people into Australia. At sentencing, the judge described Mr Magaming as ‘a simple Indonesian fisherman’ and explained that but for the mandatory sentencing provision, he would have imposed a lighter sentence. The judge said:
The seriousness of [Mr Magaming’s] part in the offence therefore falls right at the bottom end of the scale. … In the ordinary course of events, normal sentencing principles would not require a sentence to be imposed as heavy as the mandatory penalties that have been imposed by Federal Parliament. However, I am constrained by the legislation to impose that sentence.
Neither the pleadings, nor the judgment, nor media reports manage to fill in many of the gaps in Mr Magaming’s story. Why did he decide to join the crew? How was his mental and physical health? How did the imposition of a mandatory sentence which the judge considered well beyond the severity of the sentence that would have otherwise been imposed affect him? Continue reading
By Anna Dziedzic
X7 v Australian Crime Commission Case Page
The right to silence has both champions and critics. For some, this rule of criminal procedure is a fundamental bulwark of liberty; for others, including philosopher Jeremy Bentham, it is ‘one of the most pernicious and most irrational notions that ever found its way into the human mind’. In some ways, where you stand between these disparate views might depend on where you sit.
For those, like X7, who sit in the dock facing charges that carry a possible life sentence, having the choice whether to speak or not can provide an important way to protect their personal and legal rights. On the other hand, the work of organisations like the Australian Crime Commission (ACC) which sit at the pinnacle of the nation’s efforts to investigate serious and complex criminal activity, might be significantly impeded without the ability to lawfully require people they suspect of crimes to answer their questions. In the recent case of X7 v Australian Crime Commission  HCA 29, the High Court was asked to mediate between these perspectives, providing the Court with the opportunity to consider the meaning and importance of the right to silence in Australia’s criminal justice system. Continue reading