NSW Crime Commission v Lee And Anor [2011] NSWSC 80 (28 February 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	NSW Crime Commission v Lee And Anor
Medium Neutral Citation:	[2011] NSWSC 80
Hearing Date(s):	28 June 2010
Decision Date:	28 February 2011
Jurisdiction:
Before:	RS HULME J
Decision:	(i) That Elizabeth Park be examined on oath concerning her own affairs, and including the nature and location of any property in which she has an interest; (ii) That Brendan Pak be examined concerning the affairs of Jason Lee or Elizabeth Park including the nature and location of any property in which either has an interest; (iii) The Notice to Produce filed by the First Defendant on 16 June 2010 be set aside except insofar as it refers to the production of the notice referred to in paragraph 1 thereof; and (iv) The First Defendant is to pay the Plaintiff's costs of the Notice of Motion filed on 17 June 2010.
Catchwords:
Legislation Cited:	Criminal Assets Recovery Act 1990 Australian Crime Commission Act 2002 (Cth) New South Wales Crime Commission Act 1985
Cases Cited:	Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188 Australian Crime Commission v OK [2010] FCAFC 61 NSW Crime Commisison v Murchi [2000] NSWSC 591; (2000) 49 NSWLR 465 Waind v Hill and Anor [1978] 1 NSWLR 372 at p382
Texts Cited:
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission
Representation
- Counsel:	Counsel: Mr P Singleton Mr G Jones
- Solicitors:	Solicitors: John M Giorgiutti NSW Crime Commission
File number(s):	119077/2010
Publication Restriction:

JUDGMENT

1. RS HULME J : These reasons concern two Notices of Motion. In the first, filed on 10 June 2010, the New South Wales Crime Commission seeks orders that may be summarised as follows:-
   

(i) That Jason Lee be examined on oath concerning his own affairs, and including the nature and location of any property in which he has an interest;

(ii) That Elizabeth Park be examined on oath concerning her own affairs, and including the nature and location of any property in which she has an interest;

(iii) That Seong Won Lee be examined concerning the affairs of Jason Lee or Elizabeth Park including the nature and location of any property in which either has an interest;

(iv) That Brendan Pak be examined concerning the affairs of Jason Lee or Elizabeth Park including the nature and location of any property in which either has an interest; and

(v) Such other order as the Court sees fit.

2. In the second, filed on 17 June 2010, the Crime Commission seeks an order that:-
   

(i) Paragraph 2 of the Notice to Produce to the Court filed by the First Defendant on 16 June 2010 be set aside;

(ii) The First Defendant pay the Plaintiff's costs of the application; and

(iii) Such other order as the Court sees fit.

3. To appreciate some of the issues that arise in respect of the first Notice of Motion it is necessary to record some history. By Summons filed on 13 May 2010, the Crime Commission sought, inter alia:-
   

(i) Orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 , and subject to qualifications of no present relevance, restraining any person dealing with interests in property of each of Jason Lee and Elizabeth Park;

(ii) Orders pursuant to s 12(1) of the Act for the examination on oath of the following person concerning their own affairs and the affairs of each other including the nature and location of any property in which either of them have an interest;

(iii) Orders pursuant to s 12(1) of the Act for the examination on oath of Seong Won Lee and Brendan Pak concerning the affairs of Jason Lee and Elizabeth Park, including the nature and location of any property in which either of them have an interest;

(iv) An Assets Forfeiture Order pursuant to s 22 of the Act against Elizabeth Park; and

(v) A Proceeds Assessment Order pursuant to s 27 of the Act against Jason Lee.

4. On 13 May 2010 Buddin J made a number of orders ex parte including:-
   

(i) There shall be an examination on oath of the following persons ... concerning their own affairs and the affairs of each other including the nature and location of any property in which any of them have an interest:-

(a) Jason Lee ...; and

(b) Elizabeth Park.

(ii) There shall be an examination on oath of the following persons ... concerning the affairs of Jason Lee ... and Elizabeth Park including the nature and location of any property in which Jason Lee ... or Elizabeth Park has an interest:-

(a) Seong Won Lee; and

(b) Brendan Pak.

5. Against these orders Jason Lee, Seong Won Lee and Elizabeth Park have sought leave to appeal. The bases of the Application appear in a Draft Notice of Appeal and a Summary of Argument which were prepared for the Court of Appeal and copies of which were placed before me. The documents are not entirely consistent but in summary the grounds relied on appear to be:-
   

(i) Buddin J erred by not requiring the Commission to give notice of its application to be given to the persons affected;

(ii) Buddin J erred in taking into account evidence that was inadmissible and in making findings of fact inconsistent with the evidence;

(iii) Buddin J erred in granting orders in the broad terms he did;

(iv) Buddin J's decision not to require notice be given was influenced by extraneous and irrelevant matters and inadmissible evidence and there was no reasonable basis for it; and

(v) The Commission failed in its duty of disclosure in an ex parte application.

6. Before me, the matters advanced in opposition to the orders sought were:-
   

(i) Because the orders sought against the Respondents are in practical terms identical with those made on 13 May by Buddin J, the application is an abuse of process;

(ii) Any orders made by me against Jason Lee and Seong Lee should be stayed for the foreseeable future, as those 2 respondents are currently facing serious criminal charges; and

(iii) Any orders for examination should be defined in the manner contemplated by s 108 of the Uniform Civil Procedure Act 2005 and the Rules made thereunder.

7. Save and except that the orders now sought against Jason Lee and Elizabeth Park are now limited to their own affairs and not the affairs of both, it is clear that the orders now sought are to identical effect as those made by Buddin J.
   
8. The similarity is hardly surprising. The examination orders made by Buddin J were made under s 12 which empowers the Court to make:-
   

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

(i) the owner of an interest in property that is subject to the restraining order, or

(ii) another person.

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

9. Section 31D, which is the foundation for the examination orders presently sought is materially in the same terms apart from the substitution of "the affected person" for the words in sub-paragraph (a) and for the words "the owner" in the concluding paragraph.
   
10. Section 31D provides that where an application has been made for a confiscation order (defined in s 4 to include an Assets Forfeiture Order and a Proceeds Assessment Order) the Court can make an order for the examination of "the affected person" and "another person". Pursuant to s 31D(4), both Jason Lee and Elizabeth Park are therefore "affected persons". Both Seong Won Lee and Brendan Pak are not. There was no dispute, and I am satisfied, that application has been made for a confiscation order.
    
11. Though not conceded, there was in fact no challenge to the fact that the Plaintiff had established that the four Respondents were prima facie capable of giving evidence on the topics referred to in the proposed orders against them. Having regard to the contents of a number of the documents in Exhibit "JLS 1" to the affidavit of Jonathan Lee Spark of 12 May 2010, I am satisfied they can and, subject to the matters that follow, that it is appropriate that the orders sought by the Crime Commission be made.
    
12. It is apparent that the bases for the Application to the Court of Appeal that I have numbered (i), (ii), (iv) and (v) have either no, or no necessary, connection with the application before me which was made on notice and in which the persons against whom the order were sought appeared by legal representatives. Counsel for the Respondents sought to meet this point by submitting that the fact, and I think the grounds, of an appeal were irrelevant to the question whether the current proceedings were an abuse of process. He submitted that, given the Crime Commission had obtained orders for examination, so long as these were extant, it was an abuse of process to ask the Court to make what were in effect the same orders again.
    
13. However, insofar as the matters the subject of the grounds of appeal may lead to Buddin J's orders being set aside, there is clear utility in my making orders which are not the product of the same, said to be, errors. Accordingly, insofar as Buddin J's orders were, or may have been affected by error arising from the fact that they were made, and allowed to be made, in an ex parte application, it does not seem to me that there is any abuse of process in an application seeking the same orders but made in circumstances that do not contain the same potential for invalidity as earlier orders. This is so even if orders in the same terms as those made by Buddin J may render proceedings in the Court of Appeal pointless.
    
14. If that should turn out to be the case, there are sufficient powers in this Court and the Court of Appeal to deal with costs to meet any legitimate complaint of the Respondents.
    
15. Even though I do not regard the Plaintiff's application as an abuse of process one can see an argument that that Court should not make orders which are relevantly in the same terms and have the same operation as orders currently in force. However if it truly was the case that further orders could have no utility, the problem could be dealt with by dissolving the earlier orders at the same time as new ones were made. I do not understand this course to have been one urged by the Respondents.
    
16. The second matter relied on in support of the contention that the present application is an abuse of process is that Jason Lee and Seong Won Lee have been charged with criminal offences and an examination in the terms ordered would permit their questioning in respect of matters relevant to the charges against them. Reliance was placed on the decision of the High Court in Hammond v Commonwealth of Australia [1982] HCA 42; (1982) 152 CLR 188. In that case the High Court restrained a Royal Commissioner from examining a person who had been charged in respect of matters touching and concerning the charge. The foundation for the Court's decision was that, given the general principle that a person was not obliged to incriminate himself, such an examination would create a real risk of interference with the administration of justice.
    
17. In response counsel for the Crime Commission referred to s 13A and s 62 of the Criminal Assets Recovery Act and the decision of the Federal Court in Australian Crime Commission v OK [2010] FCAFC 61. In that case a majority of the Federal Court held that an examination before the Australian Crime Commission of a person charged would not create a real risk to his fair trial notwithstanding the examination included questions relating to the matters with which he was charged. The basis of the majority decision lay in the terms of s 25A of the Australian Crime Commission Act 2002 (Cth) which, they held, contemplated examinations continuing in the face of pending charges and dealt with the possibility of prejudice by confining the persons to whom answers given by a witness could be disclosed. The section required an examiner to give a direction limiting publication if a failure to do so might prejudice the fair trial of a person who had been, or might be, charged with an offence.
    
18. So far as is presently relevant s 13A and s 62 provide:-
    

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) F urther information obtained as a result of an answer being given or the production of a document in an examination under s 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.

62 Publication of proceedings

If:

(a) a person has been charged with an offence in relation to a serious crime related activity and proceedings on the charge have not commenced or, if the proceedings have commenced, they have not been completed, and

(b) proceedings are instituted under this Act for a restraining order, or an assets forfeiture order, affecting an interest of the person in property, or for a proceeds assessment order or unexplained wealth order against the person,

the Supreme Court may make such orders as it thinks fit with respect to the publication of any matter arising under this Act.

19. The qualification or limitation to s 13A(2) of the New South Wales Act inherent in s 13A(3) makes it clear that the consequences of providing an answer that is or is potentially incriminating may not all be avoided by the protection given to an examinee by s 13A(2). No doubt the possibility that publication would run the risk of prejudicing the fair trial of a person examined under the Act would provide a strong reason for any Court asked to make an order under s 62 to make one in sufficient width to minimise that risk. However, there might be competing considerations and it cannot be said that s 62 goes as far as does s 25A of the Australian Crime Commission Act 2002 (Cth) in requiring the relevant person to give a direction limiting publication if a failure to do so might prejudice a fair trial.
    
20. In my view, the circumstances here are thus governed by the decision in Hammond v Commonwealth of Australia rather than by Australian Crime Commission v OK.
    
21. The order sought against Seong Won Lee is that he be examined concerning the affairs of Jason Lee or Elizabeth Park and not his own affairs and the question therefore arises whether that order or one in more restricted form than sought by the Plaintiff, could be made against him without breaching the principle laid down in Hammond's case. However, this was not suggested by the Plaintiff and my consideration of the documents tendered by the Plaintiff in support of its application certainly suggests that the scope for self incrimination is wide. In the result I have reached the view that at this stage no orders for the examination of Jason Lee or Seong Won Lee should be made.
    
22. The third objection to the orders sought by the Plaintiff was that the terms of the orders sought were too wide, particularly as the Plaintiff had already conducted examinations of Seong Lee and Brendon Pak under the compulsory powers contained in the New South Wales Crime Commission Act . Attention was drawn to the terms of s 108 of the Civil Procedure Act 2005 which permits the examination of someone bound by a judgment or order and who can be examined as to any "material question", a term that is defined. It was submitted that a material question was one that had not already been asked and an order for examination should be confined to limit the examination to such questions. Alternatively, it was submitted that the examination should be limited to the location and nature of any property of Jason Lee or Elizabeth Park, the confiscation of property being the focus of the Criminal Assets Recovery Act .
    
23. However, I am unpersuaded that there should be any such limitation. In the first place, while it is clear that examination on oath is common to procedures under both Acts, the functions served by the examinations are vastly different as may well be the breadth of the topics relevant. I see no basis for regarding s 108 or the rules relating thereto as having any relevance to the form of examination orders made under the Criminal Assets Recovery Act .
    
24. Section 31D under which the Plaintiff's applications are brought envisages examinations "concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest". In NSW Crime Commission v Murchi [2000] NSWSC 591; (2000) 49 NSWLR 465 Greg James J held that the reference to "affairs" extended to "those activities of persons suspected of serious crime related activity whose property is restrained by a restraining order under the Act which activities might affect the making of further orders under the Act" and, leaving aside the impact of previous examinations, I see no reason to depart from the statutory terminology.
    
25. Furthermore, consideration of the transcript of the examinations of Seong Lee and Brendan Pak provides grounds for thinking that both were less than fully co-operative and frank during their examinations and I can see no reason why in any further examinations, the Crime Commission should in effect be stuck with whatever answers have been given previously. Relevant also is the fact that the effectiveness of questioning, particularly of persons whose interests are different from those represented by the questioner, or of persons who may not be disposed to co-operate is often aided by a minimum of restrictions. In short I see no reason to limit the questioning in the way sought.
    
26. The Notice to Produce which is the subject of the second Notice of Motion sought the production of:-
    

All documents held by the New South Wales Crime Commission relating to the Management Committee's and the New South Wales Crime Commission's compliance with s 25 of the New South Wales Crime Commission Act 1985 ... in relation to its investigation to Do Young Lee (aka Jason Lee) including but not limited to the following:-

1. The written notice referring the relevant criminal activity of Do Young Lee to the New South Wales Crime Commission for investigation; and

2. All documents, notes, minutes, relating to the management committee's decision to refer the matter to the Commission for investigation.

27. Counsel for the Crime Commission indicated that he wished to amend the Notice of Motion so it encompassed the whole of the Notice to Produce except paragraph 1 and there was no objection to this amendment. In essence 2 arguments were advanced on behalf of the Commission:-
    

(i) The Notice requires the formation of a judgment about legal issues, viz. compliance with s25 of the New South Wales Crime Commission Act, 1985 ;

(ii) The Notice does not have a legitimate forensic purpose.

28. Section 25 of the Crime Commission Act provides:-
    

(1) The principal functions of the Management Committee are:

(a) to refer (by a written notice) matters relating to relevant criminal activities to the Commission for investigation, and

(a1) to refer (by a written notice) to the Commission, for review, police inquiries into matters relating to any criminal activities, and

(a2) to arrange (in accordance with section 27A) for police task forces to assist the Commission to carry out investigations into matters relating to relevant criminal activities, and

(b) to review and monitor generally the work of the Commission, and

(c) to give approvals for the purposes of section 7.

(2) The Management Committee is not to refer a matter to the Commission for investigation unless it is satisfied that ordinary police methods of investigation into the matter are unlikely to be effective.

(3) The Management Committee may, by the terms of a reference, impose limitations:

(a) on the carrying out of an investigation by the Commission into any matter relating to a relevant criminal activity referred to the Commission for investigation, and

(b) on the carrying out of a review of a police inquiry referred to the Commission for review.

(4) The notice referring a matter relating to a relevant criminal activity to the Commission for investigation:

(a) may describe the matter (wholly or partly) by reference to information given at a meeting of the Management Committee or other extrinsic material, whether or not the information or materials included in or annexed to the notice, and

(b) must describe a general nature of the circumstances or allegations constituting the relevant criminal activity, and

(c) must set out the general purpose of the investigation.

(5) If information or other extrinsic material referred to in a notice is not included in or annexed to the notice, it does not form part of the notice for the purposes of section 16(2) (relating to the matter to accompany a summons to a witness).

(6) In exercising its principal functions, the Management Committee shall give high priority to matters relating to illegal drug trafficking, as far as practicable.

29. In aid of the first of these grounds, reliance was placed on remarks of Barrett J in Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 896 at [14] and [15] where, after referring to remarks in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573, his Honour observed:-
    

... the recipient of a subpoena or rule 34 notice to produce must not be put into a position of having to judge the legal effect of a document or its capacity to prove something. Thus, it is impermissible to require the production of, for example, any document proving or tending to prove that X was in Sydney at any time on 1 January 2009.

30. However in Waind v Hill and Anor [1978] 1 NSWLR 372 at p382 Moffitt P, with the concurrence of the other members of the Court, made clear that a subpoena could require the production of documents described in general terms. His Honour did not go on to indicate the degree of generality permissible albeit recognising that the terms could be so wide as to make the subpoena oppressive.
    
31. Although in Small's case the subpoena criticised required the production of documents answering one or more of a number of descriptions "relating to, or in any wise concerning, or which can or may afford any evidence or information respecting the matters in question in the said cause" and at p73 Jordon CJ remarked:-
    

A subpoena duces tecum ought not to be issued to (a stranger to the litigation) requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.

In light of what was said in Waind v Hill it is not possible to regard all use of the term "relating to" or any need to form a judgment as making a subpoena oppressive. Section 25 of the Crime Commission Act is moderately limited in its ambit and, given that fact, I do not regard the reference in the subpoena "relating to the Management Committee's and the New South Wales Crime Commission's compliance with s 25" as to be so wide as to make the subpoena one which should be set aside.

32. The Commission accepted that paragraph 2 of the subpoena was sufficiently specific such that, had it not been but a part of a wider call, it would not be set aside. The Commission also accepted that the main paragraph could be struck out, leaving paragraph 2 (and 1) standing. In light of my conclusion as to the main paragraph, I have no need to embark on this course.
    
33. So far as the issue of legitimate forensic purpose is concerned, the Commission drew attention to the nature of its proceedings against Jason Lee, involving proof of involvement in serious crime related activity in the 6 years before issue of the summons and of the value of what Mr Lee has derived from illegal activities in that period. It submitted that an investigation under the Crime Commission Act was entirely separate from proceedings under the Criminal Assets Recovery Act .
    
34. The Defendant's response to this ground was to refer to remarks of the Court of Appeal in Commissioner of Police v Hughes [2009] NSWCA 306 at [74] - [78] and of the Court of Criminal Appeal in R v Saleam [1999] NSWCCA 86 and to draw attention to the facts that he was challenging the validity of the orders under s 10 made ex parte by Buddin J and that in the application for those orders reliance had been placed by the Commission on the transcripts of the examinations of Seong Lee and Brendan Pak.
    
35. It is not necessary that I set out in these reasons the passages referred to. I accept that, if I can see that it is "on the cards" that the documents may assist Mr Jason Lee in either piece of litigation, I should not set aside the subpoena. However, I am unable to so conclude. Accordingly, on this ground I set aside the subpoena.
    
36. The orders I make are:-
    

(i) That Elizabeth Park be examined on oath concerning her own affairs, and including the nature and location of any property in which she has an interest;

(ii) That Brendan Pak be examined concerning the affairs of Jason Lee or Elizabeth Park including the nature and location of any property in which either has an interest;

(iii) The Notice to Produce filed by the First Defendant on 16 June 2010 be set aside except insofar as it refers to the production of the notice referred to in paragraph 1 thereof; and

(iv) The First Defendant is to pay the Plaintiff's costs of the Notice of Motion filed on 17 June 2010.

**********