LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2009] NSWCA 347

Reported Decision: 261 ALR 123235 FLR 122[2010] ALMD 150575 NSWLR 581[2010] ALMD 1509[2010] ALMD 1511[2010] ALMD 2004197 A Crim R 537

New South Wales Court of Appeal

CITATION: LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2009] NSWCA 347 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 September 2009

JUDGMENT DATE: 22 October 2009

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 1; Sackville AJA at 1

1. Grant the applicant leave to appeal from the judgment of Hidden J given on 20 March 2009. DECISION: 2. Dispense with the requirements to file and serve the Amended Notice of Appeal. 3. Dismiss the appeal. 4. Order that Mr Lee pay the Director's costs in this Court.

CATCHWORDS: CRIMINAL ASSETS – proceeds of crime – examination order not yet made –discretionary decision whether to grant examination order – discretionary decision to give notice requiring examination – offence under Act to refuse to answer question in examination –statutory abrogation of privilege against self-incrimination – immunity from use of answers in evidence – whether stay of proceedings justified in order to protect a fundamental right – Proceeds of Crime Act 2002 (Cth), s 180 - CRIMINAL ASSETS – proceeds of crime – forfeiture order not yet made – resistance to order only by way of application for exclusion order – exclusion order requires reasonable opportunity for examination – potential for self-incrimination – whether stay of proceedings justified – Proceeds of Crime Act 2002 (Cth), s 49 - EVIDENCE – privilege against self-incrimination – ongoing criminal investigation – no charges laid nor anticipated – confiscation of proceeds of crime sought – potential for orders for personal examination in relation to affairs and forfeiture of property subject of restraining order – whether privilege abrogated - HUMAN RIGHTS – right to silence – privilege against self-incrimination - STATUTORY INTERPRETATION – proceeds of crime – purposive construction – whether clear statutory intention to override privilege against self-incrimination – Proceeds of Crime Act 2002 (Cth)