El Khouri v Attorney-General

Case [2018] FCA 1488

FEDERAL COURT OF AUSTRALIA

El Khouri v Attorney-General [2018] FCA 1488

File number: WAD 417 of 2018
Judge: MCKERRACHER J
Date of judgment: 1 October 2018
Date of publication of reasons: 3 October 2018
Catchwords:

EXTRADITION – urgent application seeking, relevantly, to restrain the respondent from taking further action in relation to the extradition of the applicant – application resisted on jurisdictional and other grounds – where the Court lacks jurisdiction pursuant to s 39B(1C) of the Judiciary Act 1903 (Cth) – where, even were there no want of jurisdiction, the applicant failed to establish a prima facie case

Held:  application dismissed

Legislation:

Extradition Act 1988 (Cth) s 40

Judiciary Act 1903 (Cth) ss 39B(1B), 39B(1C), 39B(1C)(a), 39B(1C)(c), 39B(3)(a), 39B(3)(a)(i), 39B(3)(a)(iii), 39B(3)(a)(iv)

Crimes Act 1900 (NSW) ss 154G, 154I(1), 154J(1), 193B(2)

Criminal Procedure Act 1986 (NSW) ss 47, 172, 173, 174, 178

Cases cited:

Barton v Commonwealth (1974) 131 CLR 477

Bollag v Attorney-General (Cth) (1997) 79 FCR 198

Bou-Simon v Attorney-General (2000) 96 FCR 325

Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395

Hoye v Bush (1840) 1 Man & G 775

McGrath v Chief Constable of the Royal Ulster Constabulary House of Lords [2001] 2 AC 731

Mokbel v Attorney-General (Cth) (2007) 162 FCR 278

Oates v Attorney-General (Cth) (2003) 214 CLR 496

Phong v Attorney-General(Cth) (2001) 114 FCR 75

Vasiljkovic v Commonwealth (2006) 227 CLR 614

Date of hearing: 28 September 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 73
Counsel for the Applicant: Mr BM Singh with Mr JM Singh
Solicitor for the Applicant: BMS Law
Counsel for the Respondent: Mr EM Heenan
Solicitor for the Respondent: Attorney-General’s Department

ORDERS

WAD 417 of 2018
BETWEEN:

MILLED EL KHOURI

Applicant
AND:

ATTORNEY-GENERAL

Respondent

JUDGE:

MCKERRACHER J

DATE OF ORDER:

1 OCTOBER 2018

THE COURT ORDERS THAT:

1.The amended interlocutory application be dismissed.

2.The applicant pay the costs of the respondent on the amended interlocutory application, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MCKERRACHER J:

  1. The applicant seeks urgent injunctive relief to restrain the respondent from pursuing steps which would achieve the applicant’s extradition from the Republic of Singapore to Australia.  As his surrender to Australia is imminent, the application was listed as a matter of urgency.  He also seeks to restrain the respondent from seeking the production of two mobile phones seized from him in Singapore.  I dismissed the applicant’s amended application.  My reasons follow. 

    EVIDENCE

  2. The applicant relies on three extensive affidavits.  The respondent relies on an affidavit annexing communications with Singaporean authorities concerning the phones. 

    BACKGROUND

  3. According to the applicant’s evidence, on 29 July 2014, New South Wales police officers and officers from the Department of Fair Trading attended a warehouse in Alexandria to execute a search warrant.  They could not gain entry so telephoned the applicant’s…

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Details
AGLC
El Khouri v Attorney-General [2018] FCA 1488
Case
[2018] FCA 1488
Decision Date

CaseChat Overview and Summary

El Khouri filed an application against the Attorney-General seeking, among other things, to restrain the respondent from taking further action in relation to the extradition of the applicant from Singapore. The application was resisted on jurisdictional and other grounds. The Court had to decide whether it had jurisdiction pursuant to s 39B(1C) of the Judiciary Act 1903 (Cth) and whether the applicant had established a prima facie case. The Court found that it did not have jurisdiction and that the applicant had not established a prima facie case. The application was dismissed. The Court found that the applicant had failed to establish a prima facie case for the relief sought. The Court found that the issuance of court attendance notices gave rise to proceedings being commenced before the Parramatta Local Court. The warrants issued by the Local Court of New South Wales in Burwood were for the reason that ‘a court attendance notice has been filed in respect of the following offences’. The Court found that the relief sought was in relation to a ‘related criminal justice process decision’ and that the Court did not have jurisdiction to entertain the injunction sought. The Court found that the applicant’s contention that the mere issuance of the warrants does not give rise to a ‘prosecution for an offence’ being ‘before a Court of the State’ was incorrect. The Court found that the applicant had failed to establish a prima facie case for the relief sought. The Court ordered that the amended interlocutory application be dismissed and that the applicant pay the costs of the respondent on the amended interlocutory application.

Orders

Orders of the court

1. The amended interlocutory application be dismissed.

2. The applicant pay the costs of the respondent on the amended interlocutory application, to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The applicant relies on three extensive affidavits. The respondent relies on an affidavit annexing communications with Singaporean authorities concerning the phones. BACKGROUND According to the applicant’s evidence, on 29 July 2014, New South Wales police officers and officers from the Department of Fair Trading attended a warehouse in Alexandria to execute a search warrant. They could not gain entry so telephoned the applicant’s sister, Lilian, who was then the director of the company holding the lease of the warehouse. Lilian told the police to contact the applicant. The applicant retrieved the warehouse keys and provided them to the police at the warehouse. The keys were kept in the company office and were accessible to all employees of the company. A week after the attendance at the warehouse, on 6 August 2014, the police executed a search warrant at a Concord property, Lilian’s place of residence. The applicant was not present as the police did not contact him. The applicant’s evidence is that his parents, several siblings and their spouses reside at the Concord property, but not the applicant. On 5 March 2015, an investigating officer issued 26 court attendance notices (CANs) in respect of various offences alleged against the applicant. The CANs were issued at the Parramatta Local Court and subsequently lodged in the Local Court of New South Wales in Burwood. On 2 April 2015, the Local Court of New South Wales in Burwood issued a warrant for the applicant’s arrest. On 9 April 2015, another two warrants were issued (collectively, the warrants). The applicant deposes that neither the CANs nor the warrants were served upon him. Further, he deposes he was not informed or notified of them. He departed Australia on 30 March 2015, prior to the warrants being issued. By written request dated 21 December 2017, the Government of Australia requested the Government of Singapore arrest the applicant. The request was for ‘urgent provisional arrest’ by the Singaporean authorities pending the presentation of the formal request for extradition. On 19 January 2018, officials in Singapore arrested the applicant. He has been detained in custody in Singapore since that date. Since his arrest, the applicant has been engaged in the extradition process prescribed by the municipal law of Singapore. On 14 February 2018, Australia presented its formal extradition request to Singapore. Later on 13 June 2018, an officer of the Commonwealth Attorney-General’s Department sent an email to Singapore’s Attorney-General’s chambers asking the Singaporean authorities to deliver, ‘if possible’, the phones in the applicant’s possession ‘should Singapore authorities determine that [the applicant] is to be surrendered to Australia’. On 9 August 2018, a delegate of the Attorney-General made a request of the Government of Singapore under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the corresponding Singaporean Mutual Assistance in Criminal Matters Act (Chapter 190A, Statutes of the Republic of Singapore) for the seizure of the phones and forensic imaging by Singaporean authorities of the phones.RELIEF SOUGHT IN THIS AMENDED APPLICATION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is clear that the issuance of a CAN gives rise to proceedings being commenced in a New South Wales Court. Once proceedings are commenced they are ‘before the court’. Relevantly, the CANs filed as evidence before this Court make clear that the proceedings against the applicant commenced before the Parramatta Local Court. The warrants were subsequently issued by the Local Court of New South Wales in Burwood for the reason that ‘[a] court attendance notice has been filed in respect of the following offences’. There is no basis for the applicant’s contention that the mere issuance of the warrants does not give rise to a ‘prosecution for an offence’ being ‘before a Court of the State’ for the purposes of s 39B(1C)(a). Issue 2: ‘related criminal justice process decision’ As described by Beaumont J in Phong v Attorney-General(Cth) (2001) 114 FCR 75, on a literal approach, this Court does not have jurisdiction to entertain the injunction sought if the claim is:‘… in relation to a related criminal justice process decision … [that is to say] … in relation to an offence … a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence … [being] … a decision in connection with the investigation, committal for trial or prosecution of the [appellant]’. (Emphasis added [in original].) The legislative intention, as noted by Beaumont J (at [33]), appears to be that s 39B(1C) ought to quarantine from judicial review by this Court collateral decisions made in the prosecution process, presumably leaving the decision to prosecute itself to be provided for by s 39B(1B). Here, s 39B(1B) cannot apply, because the prosecution has already commenced. Relevantly, the injunctions sought in this proceeding seek to restrain the respondent and his officers from taking further action to acquire the phones held by Singaporean authorities and from seeking the extradition of the applicant from Singapore. The issue is whether the relief sought is in relation to a ‘related criminal justice process decision’. Consideration of this definition in s 39B ordinarily arises where a person is in Australia facing prosecution in a state court and challenges are made seeking to deprive this Court of jurisdiction to collateral challenges to decisions made in respect of prosecutions before state courts. The additional nexus that confronts the Court in this application is that there is an extradition proceeding in connection with that process in the New South Wales courts, which has been commenced by the CANs. As such the pertinent question is whether because the decision concerns extradition and phone seizure by foreign authorities it is brought outside the ordinary application of s 39B(1B) and s 39B(1C). I accept the argument made for the respondent that decisions made by the prosecuting authorities in New South Wales, to seek the assistance of the respondent in requesting the Singaporean authorities for assistance in gathering evidence (ie the request for the phones) and the extradition of the individual charged with multiple offences within the state, is a decision which falls within the definition of a ‘related criminal justice process decision’. It is a decision which could comfortably fall within the ambit of a ‘decision in connection with the investigation … or prosecution of the defendant’(s 39B(3)(a)(i)), or ‘the issue of a warrant’(s 39B(3)(a)(iii)) or ‘the giving of information’ (s 39B(3)(a)(iv).

Ratio Decidendi

Legal Principle Established

The applicant says that no attempt was made to seize his sister’s phones which would reveal the same incriminating evidence on which reliance was placed if the communications emanated from the applicant. Therefore, it is said that the reason for seizure was entirely disingenuous. The fact that the respondent waited eight months before making the request, the applicant says, is inconsistent with the two reasons given for the seizure of the phones. CONSIDERATION As noted, the applicant’s primary argument turns on the ‘errors’ in the warrants (and their consequent invalidity) and the suggestion that s 40 of the Extradition Act cannot therefore have been complied with. It is important then to consider just what function s 40 of the Extradition Act serves. Principles on s 40 of the Extradition Act In Oates v Attorney-General (Cth) (2003) 214 CLR 496, in a joint decision of the High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) it was said ([32]-[35], [39] and [45]):32At the time of the decision in Barton [v Commonwealth (1974) 131 CLR 477], the 1966 Act was in force. The issue for decision was whether a request made by Australia to the Federative Republic of Brazil, a state with which Australia had no extradition treaty, for the detention, with a view to surrender, of fugitives from Australian justice was invalid. McTiernan and Menzies JJ pointed out that the concept of invalidity is not easy to relate to a communication, and that the real question must be whether the making of such a request was unlawful. All members of the Court answered that question in the negative. All agreed that it was within the executive power of the Commonwealth to make such a request, and that nothing in the 1966 Act excluded that power, or limited it in any manner that had relevance to the case. In particular, s 21 of the 1966 Act did not limit the power of the Executive Government to make a request for extradition to a state with which Australia had no extradition treaty. 33In the course of discussing the meaning and effect of s 21 of the 1966 Act, members of the Court made observations as to its possible effect upon the power of the Executive to make a request for extradition, to a state with whom Australia had treaty arrangements, outside the scope of those arrangements. Barwick CJ expressed the view that the Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined in the Act. Jacobs J said that the question did not need to be determined, and expressed no view. McTiernan and Menzies JJ said that, unless statute, either expressly or by implication, has deprived the Executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice. They pointed out that it was understandable that Parliament should confine executive power in relation to extradition from Australia without doing the same in relation to extradition to Australia. 34Mason J examined in detail the history of the executive power in relation to surrender, and requests for surrender, of fugitives, emphasising the difference between the considerations that apply to surrender of a person present in Australia and a request for the surrender of a person resident in a foreign state. For reasons which he explained, he attached less significance to reciprocity than Barwick CJ. Mason J stressed the principle that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or necessary implication. He regarded the power to seek and obtain the surrender by a foreign state of a fugitive offender as a power essential to a proper vindication and an effective enforcement of Australian law, and said that it was not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect. 35Barwick CJ was the only member of the Court in Barton who reached his decision with any apparent hesitation, and it is evident that the reason for his hesitation was the importance which he attributed to reciprocity. However, as the other members of the Court acknowledged, and as the history of extradition legislation shows, the considerations relevant to surrender of a person from the United Kingdom, or Australia, are materially different from those which determine whether a request may be made to a foreign state to surrender a person to the United Kingdom or Australia. Such a request is an act of international intercourse, and it is for the state to which it is made to determine what its response will be. States may invoke comity as well as obligation, and if a requested state, which is not bound to accede to a request, chooses to do so, perhaps on terms as to reciprocity, then that is a matter for it. In the present case, the respondents contend, and the appellant denies, that Poland is under a treaty obligation to surrender the appellant. But the appellant’s argument depends, not only upon his contention that Poland is not under such an obligation, but, additionally, upon the proposition that, in those circumstances, it is unlawful for the first respondent to request surrender. …The lawfulness of the request…39Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision. …45It is true that a request for extradition of a person in the position of the appellant might have the effect of setting in train steps that result in a loss of that person’s liberty pending the determination by the foreign state of the request and, if that determination is favourable to the request, interruption of the individual’s life in the foreign state and removal, probably in custody, to Australia. It is an established principle, frequently applied by this Court, that legislation is construed, in the event of ambiguity, to uphold fundamental rights and to avoid unnecessarily diminishing them. However, in this case, that principle cannot assist the appellant. There is no ambiguity in either the 1966 or 1988 Act so far as requests for extradition are concerned. In neither Act is there a relevant express restriction on the Executive’s power to make a request and the foregoing principle of construction cannot fill the omission so as to give rise to an implied restriction. (Citations omitted and emphasis added.)Application of the principles