Bou-Simon, Robert Anthony v Attorney-General of the Commonwealth of Australia & Anor

[1998] FCA 781

ROBERT ANTHONY BOU-SIMON v ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)
No. NG 581 of 1998
FED No. 781/98
Number of pages - 7

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

EMMETT J

SYDNEY, 22 June 1998 (hearing and decision)

#DATE 22:6:1998

Appearances

Counsel for the Applicant: S.J. Rushton/G.J. Weepers

Solicitor for the Applicant: Clayton Utz

Counsel for the First Respondent: M.A. Wigney

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: D.J. Fagan SC

Solicitor for the Second Respondent: Director of Public Prosecutions (Cth)

THE COURT ORDERS THAT:

1. The Commonwealth Director of Public Prosecutions write to the Applicant's solicitors confirming that in relation to the amendment in paragraph 42 of Mr Craigie's affidavit the amendment sought was to change the name of the company alleged to have been the employer of the Applicant from Fay Richwhite Futures Limited to Fay Richwhite Australia Limited, that one of the grounds upon which the magistrate refused leave to amend was that to change the company name would be to add a fresh "element" to the informations and that this could not be done because the limitation period had expired.

   2. The costs of today and of 19 June 1998 be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EMMETT J

I have before me an application for interlocutory relief against the Commonwealth Attorney-General and the Commonwealth Director of Public Prosecutions ("the DPP"). The application arises out of a request for the extradition of Robert Anthony Bou-Simon ("the Applicant") from France initiated by the DPP in or about September 1997. The Applicant has been charged with certain offences relating to activities engaged in by him while an employee of Fay Richwhite Futures of Australia Limited. The thrust of the allegations is that, while an employee of that corporation, he conducted trading without authorisation and made improper use of his position as such an employee to gain an advantage for himself, namely, a financial advantage.

The Applicant is presently resident in France, where he has resided since 1994. In December 1995 warrants were issued for his arrest. Pursuant to the Extradition Republic of France Regulations, Australia made a request to France for the extradition of the Applicant. Under the terms of the treaty between Australia and France:

If the requested State considers that the information furnished in support of a request for extradition is not sufficient to fulfil the requirements of its law with respect to extradition that State may request that additional information be furnished within such time as its specifies.

On 26 February 1998, Australia received a request from the Ministry of Foreign Affairs of France that the relevant Australian authorities provide, inter alia, the following information:

* That the acts committed between 15 September 1922 and 22 October 1992 are not excluded from prosecution by a limitation period under Australian law; and indicating the date on which the investigation was commenced, including whether the acts relevant to the proceedings or search for evidence were carried out before the issuing of the arrest warrants...;

* The exact and detailed content of the acts for which Robert Anthony Ö Bou-Simon is accused; in particular which acts are said to have gained for him a financial advantage;

* Whether the companies legislation, as amended on 1 February 1993, should be considered, according to Australian law, as being more lenient or more strict.

In response to that request, the Attorney-General, acting on behalf of the Commonwealth, forwarded to the Ministry in France a supplementary affidavit, sworn on 30 April 1998, by Ian Donald Craigie, a legal officer with the DPP.

The Applicant complains that that supplementary affidavit is misleading and that the provision by the DPP to the Attorney-General of that supplementary affidavit for submission to the French Court is an abuse of process. That contention is based on what is alleged to be a failure to disclose in the supplementary affidavit all of the circumstances surrounding the prosecution of one Susan Bahr for being knowingly concerned in the offences allegedly committed by the Applicant.

The affidavit contains, inter alia, the following paragraphs:

1. The acts relied upon in relation to the various charges to show that Bou-Simon had the purpose to gain an advantage for himself have already been set out in some detail in the Affidavit of FactsÖHowever, I set out below the acts which are alleged in relation to each charge.

   32 . Bou-Simon was employed at all relevant times as the manager of Overseas Futures and Sycom Operations of Fay Richwhite Futures Limited...

   33. Bou-Simon was actually employed to carry out duties with FRF by Fay Richwhite Australia Limited (FRA) which was the immediate parent entity of FRF. The warrants for Bou-Simon's arrest refer to Bou-Simon being an employee of FRF. This is an error in particulars which may be amended before trial under section 15C of the Crimes Act 1914 which applies to the present proceedingsÖ. Also section 65 of the Justice Acts (an enactment of the State of New South Wales) applies in the present proceedings. Under this enactment no objection is allowed to any alleged defect in substance or form in the information setting out the charge and to any variance between the information and the evidence adduced in support of the charge at the hearingÖ This error in particulars does not, under Australian law, invalidate the warrants issued for Bou-Simon's arrest.

   ÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖÖ..

   42. Earlier this year, in the Downing Centre Local Court in Sydney, Susan Bahr was prosecuted for being knowingly concerned in the offences allegedly committed by Bou-Simon. On 11 February 1998, at a very late stage in the proceedings after the prosecution had completed its evidence, the magistrate hearing the charges against Bahr was made aware of the mistake referred to in paragraph 33 above relating to which company employed Bou-Simon. It was only then that the prosecution realised that the mistake had occurred. The magistrate refused an application by the prosecution to amend the charges and subsequently dismissed the charges. For reasons which are not relevant to the present matter, the DPP decided not to appeal against the decision of the magistrate.

In the proceedings against Bahr, the magistrate took a different view of the law from that stated in paragraph 33. It appears that the magistrate took the view that the name of the employer was not simply a matter of particulars, variance in which could be amended. The magistrate also took the view that any amendment would involve a fresh charge which is now statute barred.

The complaint which the Applicant makes is that it was misleading for Mr Craigie not to state the basis upon which the magistrate dismissed the charges against Bahr. It is said that paragraph 33 is misleading because:

* It does not disclose whether it is the intention of the DPP to seek to amend the charges against the Applicant so as to reflect the correct employer;

* It does not disclose that if it is the intention of the DPP to seek to amend the charges such application will be made before a magistrate in an Australian Court;

* It does not disclose that the magistrate hearing the prosecution against Ms Bahr refused an application to amend the charges so as to reflect the correct employer because it was not an error in particulars which might be amended before the trial under section 15C of the Crimes Act and because the limitation period had expired;

* It does not disclose that a magistrate hearing any application by the DPP to amend the charges against the Applicant would as a matter of comity regard the magistrate's decision in the prosecution of Ms Bahr as persuasive;

* It does not disclose that the charges against Ms Bahr were relevantly in the same terms as the charges against the Applicant.

Counsel for the Applicant contended that it was misleading for an affidavit to be furnished on behalf of Australia in response to the request from the French authorities which did not disclose that a judicial officer in Australia had in fact taken a contrary view to the opinion expressed in the affidavit. It was also said that a difficulty which faced the Applicant was that there would be no guarantee that the French authorities would accept any assertion which might be made on behalf of the Applicant concerning the reasoning of the magistrate in circumstances where there were no formal reasons published by the magistrate and the reasoning was not disclosed by Mr Craigie.

I abridged time for service of the initiating process last week and the matter has come before me on an urgent basis. It is therefore necessary to explain briefly the circumstances in which the matter has been raised on an urgent basis.

The Applicant was arrested in Paris on 29 November 1997. Between that date and 17 December 1997 he was remanded in custody. On that day, extradition proceedings were commenced before the Court of Criminal Appeal of the Appeal Court of Paris and on the same day the Applicant made an application for bail. That application was unsuccessful and the matter was adjourned to 14 January 1998 when the proceedings were again adjourned until 21 January 1998.

On that day the Applicant was granted bail and was released on 22 January 1998. On 18 February 1998 the Applicant was requested to attend before the French Court concerning the extradition. It was on that occasion that the French Court advised that it required supplementary information in the terms to which I have referred above.

On 27 May 1998 the Applicant again attended before the French Court for the purpose of seeking a variation to the conditions of his bail. On that day he was informed that the DPP had provided the supplementary affidavit of 30 April 1998. The Applicant obtained a copy of the supplementary affidavit from the clerk of the court. That was the first occasion on which the terms of the affidavit became known to the Applicant.

The extradition proceedings were adjourned to 24 June 1998 at which time the Applicant understands the extradition proceedings may be finalised. That is confirmed by evidence which has now been filed on behalf of the Attorney-General. That evidence indicates that, as a general rule, in extradition proceedings such as these in France there is no formal representation of the Australian Government. The persons present are the judge, the accused's lawyers and representatives of the French authorities, being the equivalent of the DPP.

The evidence indicates that there are only three possible outcomes to the hearing to be held in Paris on 24 June 1998. They are as follows:

(i) The Court of Appeal can decide that extradition should be granted on the basis of material which has been provided in the case to date. In that event the accused would be able to follow the usual appeal procedures if he contested the decision.

(ii) The Court of Appeal may request further information on the basis of the Applicant's arguments, in which case the hearing would be adjourned for a period of time determined by the Court. However, such a course would not occur on an application for suspension pending a decision of this court on the application presently before it. It would only be available where the Court of Appeal of its own volition requested further material.

(iii) The Court of Appeal may determine that the material presented is not sufficient and may reject the extradition request.

The Attorney General's evidence indicates that the "suspension" of extradition hearings is not possible in France. The only options open to the Australian authorities are either to withdraw their extradition request or to proceed with it. There is no room at the extradition hearing for representation of the Australian authorities' views.

An affidavit by a lawyer representing the Applicant in France, includes a statement by that lawyer that the decision of the court on 18 February 1998 was to ask the Australian authorities for further information and details concerning the issues which have been brought to light by the Applicant's defence. That affidavit also indicates that the Applicant is to appear before the court on 24 June 1998 to present his defence and that the Court may render a decision regarding extradition at that time. It also indicates that a "continuance" may be requested by the Applicant to build up his defence further but that the court may refuse a "continuance" and require that the case be debated and decided on that day with no further delay.

It is thus apparent that the Applicant will be given a right of hearing before the French Court and, indeed, that it appears he has already been heard to the extent to which he was able to persuade the French authorities to seek further information concerning the proceedings in Australia.

Upon the first ex parte application to me, I appointed last Friday as the first return of the application. On that occasion, having heard argument at some length from counsel for the Attorney-General and for the Applicant, it became apparent that it was necessary for the DPP to be joined as a party to the proceedings. Accordingly, I gave leave for the application to be amended by joining the DPP and abridged time for service of the amended application. The amended application was to be returnable before me at 4.15 this afternoon.

Upon return of the amended application I have heard extensive argument from the three parties, although only on an interlocutory basis. It became apparent to me in the course of that argument that, in order to determine whether the Applicant was entitled to any final relief, it would be necessary for me to form a view as to the correctness of the statement of law made in paragraph 33 of the supplementary affidavit referred to above.

The respondents accept that they may well be amenable to orders in the nature of prerogative writs. However, they contend that there is no basis for any final relief made out in the present circumstances because, as a matter of discretion, I would refuse final relief. It is argued that there is an alternative remedy open to the Applicant, namely, to make such submissions as he wishes to the French court, stating all the circumstances surrounding the dismissal of the charges against Ms Bahr.

I am concerned that a judicial officer in this country has formed a view contrary to that which is expressed in paragraph 33 of the affidavit. Senior counsel for the DPP has indicated that he would, on the final hearing of the matter, take me to authorities which would demonstrate that paragraph 33 correctly states the law and that the magistrate in the Bahr proceedings erred. That may be, but in the limited time available to me, it is simply not possible for me to give senior counsel that opportunity. Counsel for the Applicant contends that the magistrate correctly decided the matter as a matter of law. In the circumstances, where there is a determination of a judicial officer inconsistent with the view expressed in paragraph 33, there is at least an arguable case that paragraph 33 may be misleading.

I am also concerned that, having regard to the shortness of the time available, it may be difficult for the Applicant to establish in the French court the true facts concerning the proceedings against Ms Bahr. The argument is that there may be a risk that the French court, having received the supplementary affidavit under the official seal of the Attorney-General of Australia, may give greater weight to that statement of opinion than any opinion which might be advanced on behalf of the Applicant directly to the French court.

On the other hand it has not been possible to investigate the likely consequences of an official request being made to the French authorities on behalf of the DPP through the medium of the Attorney-General. It is said on behalf of the DPP that the view expressed by Mr Craigie cannot be considered to be other than one held bona fide and that, if the DPP were required to outline the reasoning of the magistrate in Bahr's case, it would be necessary to include a detailed argument demonstrating the errors of law made in that reasoning.

One difficulty in relation to the magistrate's decision is that no reasons have been published formally and the reasoning is to be gleaned only from an informal transcription of argument that led to the dismissal. If the affidavit is misleading, for the reasons which I have briefly indicated, and the Applicant does not have an adequate opportunity to persuade the French authorities of the facts and the reasoning for the dismissal of the Bahr proceedings, there may be injustice occasioned to the Applicant.

I have not been taken to any authority directly relevant to the question which arises before me concerning alleged abuse of process or abuse of power in relation to extradition. I have, however, been taken to a decision of the House of Lords in which it was asserted that unlawful conduct involving the police authorities of the United Kingdom and South Africa resulted in the bringing to the United Kingdom of an accused person. In those circumstances it was considered that it would be open to the Court, in order to avoid such an abuse to stay the proceedings. In Bennett v Horse Ferry Road Magistrate's Court [1993] 3 All ER 138 Lord Griffiths said (at 150):

If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

Ö [I]t is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it.

Lord Bridge said (at 155-156):

When it is shown that the law enforcement agency responsible for bringing a prosecution have only been able to do so by participating in violations of international law and of the laws of another state in order to secure the presence of the accused within the territorial jurisdiction of the court, I think that respect for the rule of law demands that the court take cognisance of that circumstance. To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view. ÖSince the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted. If a resident in another country is properly extradited here, the time when the prosecution commences is the time when the authorities here set the extradition process in motion. ÖTo hold that in these circumstances the court may decline to exercise its jurisdiction on the ground that its process has been abused may be an extension of the doctrine of abuse of process but is, in my view, a wholly proper and a necessary one.

It could not be said, of course, that the allegations in this case go anywhere near the facts apparently established in the Horse Ferry Road Magistrates case. Nevertheless, if there is a risk that the French authorities might extradite the Applicant on the basis of misleading information as to Australian law, one would be concerned to ensure that there is an adequate remedy to prevent that consequence.

I was also referred to the judgment of this court in Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 where Beaumont and Whitlam JJ, in dealing with an application to set aside a search warrant, said (at 555):

It follows, in our view, that there is no general, in the sense of abstract, "duty" of disclosure here. That is not to say that a warrant should not be set aside, as other administrative decisions can be, where there has been fraud or misrepresentation. For this purpose, a statement which was a half-truth and thus misleading,Öwould be treated, in this, as in other contexts, as a misrepresentation.

In the same decision, Hill J said (at 568-569):

For the present purposes the issue of a warrant can be seen to emerge from what the High Court referred to in the passage quoted earlier from Love v Attorney General (NSW) as an "administrative process". If that process miscarries because, for example, the informant has produced to the magistrate on oath what purports to be an information containing material which is misleading, or omits to inform the Magistrate of a matter which is relevant to the decision which the Magistrate has to make (Ö) there is no reason in ordinary principle why in an action for judicial review, whether under section 39B of the ADJR Act is not presently material, the warrant should not be set aside.

It may well be that the statements of principle in that decision could be applicable to an application such as is presently being conducted before the French authorities. The simple answer to all of that, of course, may be that this Court would decline to interfere because it is open to the Applicant to make submissions to the French court. There is no suggestion that he will not be given procedural fairness in that regard. However, on an interlocutory basis, I consider that there is at least a reasonably concern that, having regard to the shortness of time during which the Applicant has had the material, he may not be able to persuade the French authorities of the facts which, on his case, were omitted from the supplementary affidavit.

In the circumstances, I am satisfied that it is appropriate that some relief be ordered on an interlocutory basis to preserve the position until final hearing. I am loathe, however, to make any order that requires the DPP to request the Attorney General to make formal representations to the French authorities. In the short time available, no one is in a position to indicate what the consequences could be. Nevertheless, it seems to me that it is appropriate that the DPP at least confirm the facts alleged to have been omitted from Mr Craigie's affidavit.

Accordingly, I propose to order the DPP to write to the Applicant's solicitors confirming that, in relation to the amendment referred to in paragraph 42 of Mr Craigie's affidavit, the amendment sought was to change the name of the company alleged to have been the employer of the Applicant from Fay Richwhite Futures Limited to Fay Richwhite Australia Limited, that one of the grounds on which the Magistrate refused leave to amend the charge against Bahr was that to change the company name would be to add a fresh element to the information and that that could not be done because the limitation period had expired.

I also indicate that I would not regard it as being contrary to the spirit of that order if the DPP included in the letter a statement that the DPP was of the view that the Magistrate was wrong to make the rulings which she made and that the DPP would be able to advance the reasons for that view if required. If possible, that letter should be written in time to enable it to be communicated by facsimile to France during French business hours on 22 June 1998. I will reserve the question of costs on the hearing on Friday 19 June 1998 and today.