ON 21 MAY 2014, the High Court of Australia delivered Lee v The Queen; Lee v The Queen  HCA 20 (21 May 2014).
The High Court allowed two appeals, ordering that convictions be quashed with respect to various drug and firearms offences.
Before the trial, the appellants had given evidence before the NSW Crime Commission and such material was subject of a direction that it not be published if publication would prejudice a fair trial. Contrary to s13(9) of the New South Wales Crime Commission Act 1985, the material was published to members of the NSW Police Force and officers of the NSW Director of Public Prosecutions before the trial.
The appellants contended that the unlawful publication amounted to a miscarriage of justice under s6(1) of the NSW Criminal Appeal Act 1912.
The High Court held that the purpose of s13(9) was to protect a fair trial of a person who may later be charged with offences investigated by the Crime Commission. The later possession and possible use of the material by the prosecution was unfair, shifting the balance of power to the prosecution and departing from the kind of fair trial that the system of justice provides (as the court referred to in X7 v Australian Crime Commission  HCA) and that s13(9) aims to protect.
The court said that the prosecution ought to have alerted the trial judge that it had come into possession of this material so that the judge could make directions to ensure that the trial was not affected.
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