Andreola v Director of Public Prosecutions
[2002] VSC 274
•18 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 5962 of 2002
| DANIEL MICHAEL ANDREOLA | Plaintiff |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Defendant |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 JUNE 2002 | |
DATE OF JUDGMENT: | 18 JUNE 2002 | |
CASE MAY BE CITED AS: | ANDREOLA v DIRECTOR OF PUBLIC PROSECUTIONS | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 274 | |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Ms R.E. Carlin | K. Robertson, Solicitor for Public Prosecutions |
HIS HONOUR:
Because one aspect of this application goes to the right of the applicant to remain in this country, I have agreed to give judgment on the application as a matter of urgency. In the circumstances, my reasons will not recite the provisions of the relevant statutory framework contained in Subdivision C and following of Division 4 of the Migration Act as fully as they otherwise might. They will rather express my opinions as to the effect of the provisions referred to before me as is necessary for determination of the matter.
The applicant in this matter, Mr Andreola, has been convicted of fraud offences in the County Court and sentenced to a term of imprisonment. He is currently on parole and will complete his parole period relatively soon. He is also awaiting the outcome of an appeal against conviction heard earlier this month by the Court of Appeal. The Director of Public Prosecutions has indicated that, if the appeal is successful, he will not proceed with a re-trial. As a result of the conviction, the Director of Public Prosecutions has cancelled the relevant criminal justice certificate and in turn, as a result, the applicant's criminal justice visa has also been cancelled.
The applicant before me seeks orders, first, that the Director of Public Prosecutions reimburse the applicant in respect of basic needs pursuant to the terms of the criminal justice certificate issued on 17 April 2000 and, second, that the criminal justice visa cancelled on 3 June 2002 be re-issued.
The applicant also made application from the Bar table for a new trial on the basis that correspondence relating to the issues before me discloses fresh evidence relevant to his conviction. In my view, this last matter is a matter for the Court of Appeal and I shall not comment upon it further.
In addition, it is my view that the administration of criminal justice does not require the continued presence of the applicant in Australia. In this regard I adopt the underlying rationale of the reasons of Nathan, J. in the matter of Barudea (unreported, 7 March 1995) delivered in this Court on 7 March 1995. In particular I refer to the following passage:
"That then returns me to whether or not the administration of criminal justice requires his continued presence in Australia. I am satisfied it does not. There is no necessity for him to be in Australia to pursue the application for leave to lodge an appeal out of time, such an application to be heard by the Full Court on 16 March, and he is not to be deported, being the next convenient time until St Patrick's Day, the day following. The application certainly does not require him to give viva voce evidence or to file further affidavit material. I have read all the material filed thus far and it is apparent that supplementary material is not necessary and, even if it were to be put forward, would be extremely unlikely to be received by the Court of Criminal Appeal. There then remains the possibility that having been granted leave to appeal out of time, an appeal is instituted and the convictions quashed, unless he were prepared to appear in person, and I have not heard a suggestion to that effect, it is extremely unlikely that he would be required to be in Australia to conduct the appeal against sentence and conviction. The Court of Criminal Appeal in this jurisdiction accepts affidavit material and hears oral argument from counsel. I have heard that the applicant is legally aided and I can reasonably assume that, were he to be successful in having the convictions quashed, legal aid would extend to the hearing of the appeal on its merits. Accordingly, on the evidence thus available to me, there is no requirement that Mr Barudea remain in Australia for justice to be administered within the terms of the Migration Act."
In the present case I am satisfied that the applicant's appeal has already been heard by the Court of Appeal and that any further proceedings in the nature of an application to the High Court cannot be said to require his presence at this time within Australia.
In addition to the above authority, I adopt the reasoning of Merkel, J. in the case of Wasfi [1998] 639 FCA determined in the Federal Court at Melbourne on 5 June 1998 (applying it to a certificate issued by the Director of Public Prosecutions). In particular I refer to the following passage:
"The purpose for obtaining a criminal justice certificate in respect of the applicant was the prosecution of the applicant for the offences in respect of which he was extradited to Australia and, if convicted, any punishment by way of imprisonment for the commission of those offences. Consequently in the present case, when the applicant's prosecutions were completed and the terms of imprisonment served, the purpose for which the criminal justice certificate had been given was exhausted. When the applicant is no longer required in Australia for the purposes of the certificate by the Attorney-General under s.145, the Attorney-General is to cancel it: s.162(1). Upon cancellation of the certificate, the criminal justice visa granted because of the certificate is cancelled: s.164. A decision made under s.162(1) to cancel the certificate is not a discretionary decision. In the present case the sole criterion for the decision to cancel the criminal justice certificate granted in respect of the applicant was whether the applicant's punishment by way of imprisonment had been completed, because when it had been completed the applicant's presence could no longer be required for the purpose of the certificate."
For the above reasons, I do not propose to make an order with respect to the applicant's criminal justice visa.
This leaves outstanding the matter most extensively debated before me. By a criminal justice certificate issued on 7 April 2000 pursuant to s.148 of the Migration Act, the Director of Public Prosecutions recited in part as follows: "And whereas I consider that satisfactory arrangements have been made to make sure that the costs of keeping Daniel Michael Andreola in Australia will be met by the Office of Public Prosecutions for the State of Victoria."
Mr Andreola contends that this certificate gives rise to an undertaking enforceable at law that the Director of Public Prosecutions would meet his living expenses during the period of the certificate. I do not accept that this is so. I accept the view stated by French, J. in Goldie v. Commonwealth of Australia decided in the Federal Court at Perth on 18 March 2002 that the provisions of the Migration Act 1958 with respect to criminal justice certificates are not intended to create any rights or privileges on the part of an unlawful non-citizen. It follows Mr Andreola's claim in this regard must fail as a matter of strictness.
Nevertheless it might be thought that the proper administration of justice required the Director of Public Prosecutions to honour the terms of the certificate. The Director of Public Prosecutions has indicated that he will honour the intention of the terms of the certificate, which he contends was to provide for payment of expenses in so far as the applicant is unable to meet those expenses from independent means. It was accepted in argument before me on behalf of the Director of Public Prosecutions that the certificate may be regarded as expressed in more general terms than the position for which the Director of Public Prosecutions contends. The Director contends however that the certificate was based upon a subsistence undertaking which responded to the terms of s.148(c) of the Migration Act. It appears from the judgment of Gray, J. in the Federal Court, with respect to the current applicant, given at Melbourne on 29 May 2002, that a manual issued by the Attorney-General's Department of the Commonwealth at or prior to the relevant time, contains material suggesting that something called a "subsistence undertaking" was required pursuant to s.148(c) and that it should set out the following provision of a subsistence level of support if the non-citizen is not kept in detention: "This means a payment of cash or services to the non-citizen of a level sufficient to provide basic needs, including food, shelter and transport (if required)." The relevant undertaking which the Director of Public Prosecutions contends informs the interpretation of the certificate was in the following terms:
"Undertaking:
I, Steven Carisbrooke, Acting Solicitor for Public Prosecutions for the State of Victoria, do hereby undertake that if a criminal justice stay visa is issued to Daniel Michael Andreola for the purposes of the administration of criminal justice in relation to an offence against the law of Victoria, and if the said Daniel Michael Andreola is not detained in custody, and if the said Daniel Michael Andreola has no independent means of support, the Office of Public Prosecutions for the State of Victoria will provide cash or services to the said Daniel Michael Andreola sufficient to provide basic needs, including food, shelter and transport, until the cancellation of the said criminal justice stay visa."
The applicant requested reimbursement for expenses by e-mail to the Director of Public Prosecutions on 15 April 2002 (Exhibit A). The Director of Public Prosecutions responded by e-mail dated 24 April 2002 (Exhibit 1). Since that time, despite further correspondence, the application for reimbursement has broken down because Mr Andreola is not prepared to make a statutory declaration as to assets held by him outside Australia.
It follows from the view I have taken of the nature of the certificate that Mr Andreola is not entitled to enforce his view of the intention of the certificate in this Court. Conversely, the Director of Public Prosecutions is entitled to maintain the view he has taken as to the intention of the certificate, and I cannot enforce a different view.
I should perhaps observe, however, that I do not regard the terms of the certificate as being as clear-cut as the applicant contends. I should also record that I have reached the view expressed above, despite the observations of Gray, J. in the Federal Court, particularly at paragraph [21] of his judgment, where he said:
"I am of the view, which I have expressed to counsel for the Director of Public Prosecutions, that, because the criminal justice visa has been granted on the basis of a certificate in those terms, I cannot see how the Director of Public Prosecutions can now contend that he is entitled to take into account the means of the applicant in considering whether to make payments of expenses of keeping the applicant in Australia. I stood the matter down temporarily to allow counsel for the Director of Public Prosecutions to seek instructions on that matter, but counsel for the Director of Public Prosecutions indicated that the present Director takes a different view of the certificate from the one that I take. In my view the integrity of the criminal justice system in the State of Victoria might well be damaged by the taking of such a view."
For the above reasons, while I acknowledge the underlying sensitivity of the issues raised by the applicant with respect to the proper and bona fide administration of the system of criminal justice, the application before me must be dismissed.
(Discussion ensued.)
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