Clearihan v Repatriation Commission

Case [2020] FCA 1130

FEDERAL COURT OF AUSTRALIA

Michaels v Commonwealth of Australia [2002] FCA 1130

HUMAN RIGHTS – claim of unlawful discrimination under s 46PO Human Rights and Equal Opportunity Commission Act 1986 (Cth) – alleged false charges, false evidence and perjury by investigating officers of National Crime Authority – jury convicted applicant – appeal dismissed – claim for compensation for incarceration an abuse of process – application to extend time to file application refused

Human Rights and Equal Opportunity Commission Act 1986 (Cth) subss 46PO(1), 46PO(2), 46PO(3), 46 PH(1), 46PH(2)

Racial Discrimination Act 1975 (Cth) s 9

Federal Court Rules O 81 r 5

Ousley v The Queen (1997) 192 CLR 69 referred to

Commissioner of the Australian Federal Police v Butler (1989) 91 ALR 293 followed

Hunter v Chief Constable of West Midlands Police [1982] AC 529 discussed and applied

Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209 referred to

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 referred to

Rogers v The Queen (1994) 181 CLR 251 referred to

Reichel v Magrath (1889) 14 App Cas 665 discussed and applied

Walton v Gardiner (1993) 177 CLR 378 referred to

Connelly v Director of Public Prosecutions [1964] AC 1254 referred to

Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 referred to

New South Wales Bar Association v Somosi [2001] NSWCA 285 referred to

Tiufino v Warland (2000) 50 NSWLR 104 referred to

Tszyu v Fightvision Pty Ltd (2001) 104 IR 225 referred to

Wilson v Commonwealth [1999] FCA 1308 followed

R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26 referred to

Collins v State of South Australia [1998] SASC 6960 referred to

Malan v Booth as Trustee of the Estate of Malan [2000] FCA 685 referred to

Ravenor Overseas Inc v Readhead (1998) 152 ALR 416 referred to

Gargan v Official Trustee in Bankruptcy [1997] FCA 237 referred to

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 followed

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 referred to

Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 referred to

Saffron v Commissioner of Taxation (1991) 30 FCR 578 followed

General Medical Council v Spackman [1943] AC 627 referred to
Hollington v F Hewthorn & Co Ltd [1943] KB 587 referred to

EDGAR MICHAELS v COMMONWEALTH OF AUSTRALIA & ORS
N 839 of 2001

ALLSOP J
SYDNEY
13 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 839 of 2001

BETWEEN:

EDGAR MICHAELS
APPLICANT

AND:

COMMONWEALTH OF AUSTRALIA
FIRST RESPONDENT

AUSTRALIAN FEDERAL POLICE
SECOND RESPONDENT

NATIONAL CRIME AUTHORITY
THIRD RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

13 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application of the applicant for an extension of time in which to commence these proceedings under subs 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.

2.The…

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AGLC
Clearihan v Repatriation Commission [2002] FCA 1130
Case
[2020] FCA 1130
Decision Date

CaseChat Overview and Summary

The case of Clearihan v Repatriation Commission involves the applicant, Edgar Michaels, who sought an extension of time to commence proceedings against the Repatriation Commission and others. The primary issue before the court was whether Michaels could establish a racial discrimination claim under the Racial Discrimination Act 1975 (Cth). The court had to determine if the allegations of racial discrimination were substantiated and if they fell within the scope of federal law. Michaels alleged that he was falsely accused of drug trafficking, that evidence was tampered with, and that perjury was committed against him, all based on his Colombian nationality.

The court examined the affidavits submitted by Michaels, which detailed his conversations about importing recycled paper and his denial of any involvement in drug trafficking. The affidavits did not adequately address the particulars of the claim under the Racial Discrimination Act. The court considered whether the allegations of false accusation, evidence tampering, and perjury were based on Michaels’ race, as required by the Act. The applicant argued that these acts were racially motivated to lend credibility to the false drug charges. The court scrutinised the seriousness of the allegations but found that they did not necessarily implicate federal law unless they involved racial discrimination.

Ultimately, the court dismissed Michaels' application for an extension of time and the proceedings. The court found that the allegations, while serious, did not sufficiently demonstrate racial discrimination as required by the Racial Discrimination Act. The court ordered that Michaels pay the costs of the respondents for the entire proceedings.

Orders

Orders of the court

1. The application of the applicant for an extension of time in which to commence these proceedings under subs 46PO(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) be dismissed.

2. The proceedings be dismissed.

3. The applicant pay the costs of the respondents of the whole proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 18 October 2000 the President of the Commission terminated the complaint of Mr Michaels on the ground that she was satisfied that it was lacking in substance: par 46PH(1)(c) of the HREOC Act.The Evidence Two affidavits of the applicant were read in the application before me. The first dated 14 March 2002 (and filed 18 March 2002) deposed to a number of matters in connection with, and underlying, his criminal charges. He said that he spoke by telephone in 1997 to a number of people, including one of his erstwhile co-accuseds, a Mr Reardon, about importing recycled paper into Australia. One of the conversations which the applicant had, he says, was with Mr Purchas, an officer of the NCA. The affidavit in substance asserts that he was only involved in discussing the importation of recycled paper and the question of drugs did not come up in any conversation with him. Another affidavit dated and filed 5 March 2002 was to similar effect. Neither affidavit was directed in any coherent way to the particulars under [11] of the statement of claim. The affidavits reiterated the contents of the affidavit accompanying the application. There was no of elucidation of the phrase “based on the applicant’s race” used in the particulars to [11] of the statement of claim. There was no evidence put forward about this, beyond the fact of the applicant’s nationality and the nature of the crime. The applicant makes grave allegations. If they occurred they are of the utmost seriousness. However, unless they raise a matter under a federal law they do not give this Court jurisdiction. It is alleged, however, that these acts were done “based on the applicant’s race”. For the purposes of subs 9(2) of the RD Act, it was alleged in submissions that these acts (false accusation, evidence tampering and perjury) involved a distinction or preference based on national origin or race with the purpose or effect of denying the applicant the enjoyment of his liberty. It was put in argument that the applicant wished to allege that these wrongs were done to him because he was Colombian, so as to add, it was said, verisimilitude to false charges about cocaine. It is appropriate to set out a passage taken from one of the applicant’s affidavits in order to gauge the nature and width of the allegations made by the applicant. (There are various typographical errors. All appear in the original.)The Facts are· I was approached with the request if I knew any person who could speak English and Spanish in Chile, South America to assist in business that Mr Purchas was going to conduct in Chile Soil and with the understanding he will invest or buy in the recycle paper.· That member of the National Crime Authority Mr Michael Ralph Purchas and Mr Paul Fehon created and financed this crime, during this operation they portrayed themselves to be member of the Jewish Community, being the financial and mastermind of this drug deal.· I repudiate the facts that Mr Michael Ralph Purchas were authorized by high authorities in the government to hide behind the masquerade of being a member of the Jewish Community, this created animosity between the different ethic groups in Australia communities. And is in breached of the discrimination Act on Religious grounds.· The fact that the National crime authority is creating and financing drugs with assistance of police informant is in fact a breached of many of the clause or rules from the International Covenant on Civil and Political Rights, the United Nations treaty on Narcotic & subtropics substance, the breached of the International code of conduct and failure to apply through the appropriate diplomatic channel of The Mutual Assistance treaty which Australian is a party signed to them.· The event developed during this operation are far beyond the alleged entrapment legal arguments, due to the manner, initiative, their illegal and corrupt conduct and deep involvement of the law enforcement members on this and other operation.· The lack of the integrity of the Judicial judges that condoning law enforcement corrupt and illegal conduct to justify their position instead of severely stay the case or take a legal remedy as legislative power had been entrusted them, to sensor this activities. The judge in fact assist this office to committed perjury through the proceeding an in due so she or he is in breached of the International Covenant on Civil and Political Rights.· Mr Purchas breached and mislead me in relation to the recycle paper and the National Crime Authority ignored and breached a verbal consent, between myself and formal National Crime Authority Mr Gordon Elliot, for the fact that member of it organization were the bosses and financiers of this illegal enterprises as the evidences shows.

Decision

Reasons for decision

ALLSOP J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP J

I set out below the substance of the letter (typographical errors in original):1.Criminal record of Crown Witness Mr. Raymond Winslett, “please notice that Mr Winlett have been under Psychiatric treatment ordered by district court judge since 1996. (refer criminal records)2.Mr Winslett have being illegally employ under the NCA and other police department such as NSW Crime Commission to created an conduct police drug set up as he has done it in the follow cases: Mr. Corn Karageorge, “Operation Opaline Michael Reardon, Douglas Crombie, Cynthia Crombie, and their two children, Haydee Martinez, Lily Villegas, Cliff Taylor Ian Cox and Edgar Michaels.” “Mr. Craig Huesslar” “Operation Greeks Mr. Angelo kalpaxic” “Mr. Bill Clare” “Mr. William Riley” all this operation under the NCA3.Mr Christopher Bonnici solicitor for the NCA tender an affidavit to the court of criminal Appeal were he admitted that not all the evidence on Operation Opaline were given to the defences and not disclose of Mr. Winslett Psychiatric records. (see affidavit last paragraph)4.Audio tape report on the tape conversation of the 18 November 1997 between Inspector Michael Ralph Purchas, Edgar Michaels and Mr. Purchas and Michael Reardon. This tape was tampered because it contain evidence of death threats coercion against the accuses carried out by Inspector Purchas (refer: tape report)5.The charge of conspiracy against Mr. Edgar Michaels is vicious and misleading, as I couldn’t conspire with police officers due to the fact that Mr. Reardon had decided to return to Australia by 17 November 1997, Chile time, for this reason officer. Michael Ralph Purchas threatened his life. This threat should have been recorded on the tape used on 18 November 1997, unfortunately for the defence the tape has been tampered with by officer Purchas, during a meeting at Martin Place, Sydney, Australia time. Another fact of threats by officer Purchas is on tape recorded on a the 19 November 1997 where officer. Purchas threatens Mr. Edgar Michaels, in relation to a fax sent by Mr Reardon.6.Before Mr. Reardon was sent for the first time to Chile he was given a “crash course on drugs” as he told Mr. Winslett that he doesn’t know much about it, and Winslett decided that he couldn’t provided them, this was under the instruction by police Paul Fehon from the NCA.7.In his first trip to Chile Mr. Reardon failed to provide any drugs and any contact with anyone and he decided to return to Australia, but then he was threatened by officer Mr. Oscar Miranda and allege Chilean Police office or “member of the Jewish syndicate in Australia.” When Mr Reardon returned for the first time from Chile he insisted that “he wanted out” instead the instruction given by police officers Paul Fehon and Inspector. Purchas to the informant Mr. Winslett was to put under further pressure to Mr. Reardon to continue arrangement to return back to Chile.8.The police used three registered Police informants to manufacture this case otherwise the people that was charge would have never meet previously. The informant are Mr. Allen Dillon, Mr. Raymond Winslett, and Mr. Allen Johnston.9.During cross examination on the integrity of the case, the police testified that they made an application for assistance to the Chilean Government Authorities previous or during the operation. A letter obtained after trial, from the offices of the Attorney General International Branch stated that no requests were carry out on behalf of the National Crime Authority or any of its members during June and November 1997, however there is evidence that this request was done on 8 July 1998 one year after the Operation Opaline had taken place and for different reason. This is proof that the Crown and the police engaged in inappropriate conduct by trying to cover the police illegality conducted in Chile. (refer to Commonwealth Attorney office letter 2 July 1999)[emphasis in original]