Lee and Anor v. New South Wales Crime Commission

Lower Court Judgment

6/09/2012 Supreme Court of New South Wales (Court of Appeal) (Beazley, McColl, Basten, Macfarlan and Meagher JJA)

[2012] NSWCA 276

Catchwords

Criminal law – Recovery of proceeds of crime – Examination orders – Whether examination would interfere with the administration of justice in criminal proceedings – Whether examination order may be made where criminal charges pending against examinee – Whether procedural protections available to prevent abuse of power – Criminal Assets Recovery Act 1990 (NSW), ss 13A, 31D, 63

Constitutional law – Ch III of the Constitution – Separation of judicial powers – Functions incompatible with institutional integrity of State Supreme Court – Validity of s 31D of Criminal Assets Recovery Act 1990 (NSW) – Whether requiring a State Supreme Court to make an examination order without regard to the capacity of that order to prejudice the fair trial of the person is incompatible with Ch III

Statutes – Criminal Assets Recovery Act 1990 (NSW) ss 13A, 31D, 63 – Examination orders – Whether power to order examination limited by general law principles relating to a fair trial.

Short Particulars