Lee v Attorney General for NSW [2017] NSWCCA 27

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v Attorney General for NSW [2017] NSWCCA 27 Hearing dates: 20 February 2017 Date of orders: 09 March 2017 Decision date: 09 March 2017 Before: Hoeben CJ at CL at [1] Latham J at [161] Price J at [162] Decision: (1) The non-publication order of Judge Cogswell SC made on 22 October 2015 pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW) be continued until further order of the Court.

(2) That leave be granted to Do Young (Jason) Lee and Seong Won Lee pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from two judgments of Cogswell SC DCJ of 29 August 2016 and 11 November 2016 but that the appeals be dismissed.

(3) That the appeal by the Attorney General pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against the order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee be allowed and that the order prohibiting Brendan Pak from giving such evidence be set aside.

(4) That the appeal by the Attorney General pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW) against the temporary stay of the criminal proceedings against Do Young (Jason) Lee and Seong Won Lee be allowed and the order imposing a temporary stay of those proceedings pending the payment of costs, be set aside. Catchwords: CRIMINAL LAW – applicants seeking leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to appeal from refusal to grant a permanent stay of certain criminal proceedings brought against them – supplying prohibited drugs and weapon offences charged – convictions at first trial quashed by High Court and retrials ordered – additional proceeds of crime offences now charged – finding by primary judge that applicants had not demonstrated a fundamental defect giving rise to unfair consequences – applicants self-represented – some grounds of appeal misconceived – no unfairness in approach of primary judge – no basis for primary judge recusing himself on the basis of apprehended bias – applications for permanent stay refused ­– APPEALS BY ATTORNEY GENERAL pursuant to s 5F(2) of the Criminal Appeal Act 1912 – order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – order granting temporary stay of certain criminal proceedings pending payment of costs by DPP – no basis for finding by primary judge that Mr Pak changed his position in pre-trial interviews by NSW Crime Commission – no evidence that Mr Pak made aware of content of Seong Won Lee's Crime Commission interviews – no proper basis for order prohibiting Brendan Pak from giving evidence in the prosecution of Seong Won Lee – appeal on that issue allowed and order quashed – in relation to temporary stay, failure by primary judge to take into account a relevant consideration – House v The King error established – fault on the part of DPP in original trials not of the kind to justify a temporary stay – appeal allowed and order granting temporary stay quashed – alternatively, a different temporary stay order should have been made – appeals by Attorney General allowed. Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) – ss 193B(2), 249C and 307A Criminal Appeal Act 1912 (NSW) – s 5F(2), 5(F)(3)(a) Criminal Assets Recovery Act 1990 (NSW) Director of Public Prosecutions Act 1986 (NSW) – s 29 Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1) and 25(2) Firearms Act 1996 (NSW) – s 7(1) Evidence Act 1929 (SA) – s 67 Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Do Young Lee v The Queen; Seong Won Lee v The Queen [2014] HCA 20; 253 CLR 455 House v The King [1936] HCA 40; 55 CLR 499 Jago v District Court (NSW [1989] HCA 46; 168 CLR 23 Johnson v Johnson [2000] HCA 48; 201 CLR 488 Lee, Do Young v Regina; Lee, Seong Won v Regina [2013] NSWCCA 68; 232 A Crim R 337 Petroulias v The Queen [2007] NSWCCA 154; 176 A Crim R 302 R v Curtis [2014] NSWSC 1582 R v Sellers; R v McCarthy [2015] NSWCCA 76; 89 NSWLR 155 Re: Polites; Ex Parte the Hoyts Corporation Pty Ltd [1991] HCA 25; 173 CLR 78 Regina v Fisher [2003] NSWCCA 41; 56 NSWLR 625 Romolo v R [2016] NSWCCA 240 SD v New South Wales Crime Commission [2013] NSWCA 48; 84 NSWLR 456 Williams v Spautz [1992] HCA 34; 174 CLR 509 X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 Category: Principal judgment Parties: Do Young Lee – Applicant and Cross-Respondent Seong Won Lee – Applicant and Cross-Respondent Attorney General for NSW – Respondent and Cross-Appellant Representation: Counsel: Applicants-Cross-Respondents – Self represented W Abraham QC/Dr D Kell SC – Respondent and Cross-Applicant