Lessur-Millar v The Director of Public Prosecutions

[1990] HCATrans 29

~ ~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S28 of 1989

B e t w e e n -

RICARDO LESSUR MILLAR

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J
DAWSON J
TOOHEY J

Millar(2)

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 2 MARCH 1990, AT 2.51 PM

Copyright in the High Court of Australia

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MR P.W. LARK.IN:  May it please the Court, I appear for the

applicant on a dock brief.

MR P.S. HASTINGS:  May it please the Court, I appear with

my learned friend, MR P.L. BUDDIN on behalf of

the respondent. (instructed by the Director of

Public Prosecutions)

BRENNAN J:Yes, Mr ~~rktn?

MR LARKIN:  Your Honours, this is an appli~tion for speqial leave to

appeal from a decision of the New South Wales

Court of Criminal Appeal whereby they refused leave

to appeal from the district court. The district

court entertained an application for a stay of

certain prosecutions and decided that no stay should

be granted. These proceedings have a criminal nature

about them although, perhaps, it might - I am in

the Court's hands - be convenient for you to hear

me on the leave matters.

BRENNAN J:	Yes, if you could direct your attention to the special leave aspect of it first.	Do you have any
notes of argument at all, Mr Larkin?
MR LARK.IN:	Your Honours, I do not.	I have only handed up

a few authorities. It was my hope that I would

direct my attention to the leave matters. There is

a difficulty, really, with going much further than

that for this reason, something that, perhaps, I

should raise with Your Honours straight away.

The application book was something which,

through no fault of my friends, was prepared without

our input into it. I understood that was simply

because the district court refused to proceed

with the prosecutions further. Consequently, if it

were thought, if Your Honours were minded to grant

leave, then it would be my submission that it would

be appropriate for a separate appeal book to be

prepared. That, of course, is a secondary step in

the process. (Continued on page 3)

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r1R. LARKIN:	So far as the leave points are concerned,

Your Honours, perhaps if I could just very briefly address myself to the heads of error·- very briefly -

and then move to the leave points. Your Honours,

the first head of error is that the Court of Criminal

Appeal has exercised its discretion on the basis that,

in effect,	there is no res judicata binding on
the applicant.	That finding appears at page 3 7 point 2 of

the appeal book. It is a quite, perhaps curious,with

respect, finding, given that indeed the central plank -

one of the central planks anyway -of the district

court's finding was that there was a res judicata and

what the Court of Criminal Appeal did- they, in effect,

said:

• It seems to me quite inappropriate -

for that court to -

embark upon a consideration

of the matters where appeal is only available as a

matter of leave, because if there is any illegality in consequence of which the prosecutions are flawed,

, that would not be finally determinative of the

applicant's rights and that that illegality would

found a ground for an appeal. It is my respectful

submission that to exercise the discretion on that

basis must be wrong, because the finding below was

res judicata -was that the applicant is forever

precluded from litigating before the courts the

question of the circumstances of his removal to

Australia.

BRENNAN J: Was it the circumstances of his removal - - -

MR LARKIN:  Removal from Mexico to the United States - - -

BRENNAN J: - - - or tne illegality of it?

MR LARKIN:  Yes, Your Honour, yes.

BRENNAN J: Well, was it his removal from Mexico, or was it

a question of illegality of his movement into

Australia?

MR LARKIN: Well, Your Honour, in my respectful submission,

it is both. Certainly it is a question of the

legality of his removal into Australia, but the

legality or otherwise of that hinges upon the

circumstances of his coming to be within the

jurisdiction. of the United States and, as

Your Honours will see from the affidavit, there has

been a consideration· of those matters by His Honour

Mr Justice Smart in the supreme court, so I would

think that it would be both matters, Your Honour,

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in that, if there was an illegality in the

circumstances of his removal from Mexico to the United States,that may be a basis for the grant

of a stay. It may be a relevant matter to take

into account when deciding whether or not to grant

a stay.

The point that I make quite simply and briefly

is that it was an error for the Court of Criminal

Appeal to refuse to grant leave to appeal on the

basis that the applicant can raise these issues at

trial or on an appeal where the finding below was

precisely to the contrary that he could not do that.

Secondly, Your Honour, the whole point of a stay application is to avoid the need for a trial and to avoid the need for a consequent appeal and an

opening of a whole range of issues. If there is

indeed some, well, illegality, which is perhaps

analogous to jurisdiction, although I accept that it

is a discretionary matter, if there is, then it
would be oppressive in a manner of speaking to proceed

to try the applicant on all of those matters when

that matter could be dealt with discretely· and at

the early stage.

DEANE J:	Mr Larkin, I am a little lost. What is it that would
stop your client from raising the illegality of his
removal if it could otherwise be raised? What is the
res judicata?

(Continued on page 5)

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MR LARKIN:  The finding of res judicata is at page 5 of the

appeal book. Perhaps if I could take Your Honour

to that.

DEANE J:	Page 5 of the -
MR LARKIN:	Page 5 of the application book, I am sorry,

about point 3 where His Honour Judge K.noblanche

said:

I then made my ruling that Res Judicata did

apply and that any of the parties before me
who were parties to the case before Smart J.

were precluded from litigating before me

questions of the lawfulness of the
extradition of the accused from the U.S.A.

to Australia.

Now, if I might pause there, it is an interesting

way as to error, an interesting way of phrasing that.

What, with respect, His Honour said is that:

any of the parties before me who were parties

to the case before Smart J. -

and, Your Honour, it is my

DAWSON J: What were the proceedings before Mr Justice Smart?

What was the nature of them?

MR LARKIN:  They were proceedings for prohibition. Prior to

coIImlittal the applicant commenced proceedings in the

supreme court for orders prohibiting the prosecutions.

His Honour Mr Justice Smart decided that no such

orders should be made. There was an - - -

DAWSON J: Prohibiting on what basis? What was the application,

pronibition on the basis they were what?

MR LARKIN:	Were anabuse of process, Your Honour.
BRENNAN J: Is that an accurate statement of what the proceedings

were in the light of what appears on page 4, at the

top of the page of the appeal book,where it was said

that the accused sought a declaration?

MR LARKIN:  Yes,· I noted that, Your Honour. I have annexed the

judgment of Mr Justice Smart to the affidavit and

His Honour Mr Justice Smart says of the applicant:

He seeks an order that he be forthwith released

from custody and permitted to leave the jurisdiction

of the Court. Alternatively, he seeks an order

prohibiting the continuance of the proceedings

as being an abuse of process.

That is a matter that I did note in passing and I - - -

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TOOHEY J:  You slipped over the opening words,have you not,

Mr Larkin? It claims that he is unlawfully

extradited?

MR LARKIN:  Yes.

~QOHEY J: Well that is consistent with what appears at the

top of page 4?

MR LARKIN:  Yes, Your Honour. Yes, it is. I am not sure

whether a declaration was sought or not. I am certain

from His Honour Mr Justice Smart's judgment that

certainly an order for his immediate release to leave

the jurisdiction was sought and also an order in the nature of prohibition was sought but I cannot assist

as to whether a declaration was sought, though I do

not know, subject to what Your Honours might think,

anything material swings on that point.

BRENNAN J: If there were proceedings, to use the words of

Justice Smart, seeking an order prohibiting the

continuance of proceedings as being an abuse of

process and that matter has been passed and gone

and it resulted in a verdict in favour, or a decision

in favour of the prosecution,then do you seek to

challenge the proposition that your client is bound

by the result of that decision?

MR LARKIN:  Your Honour, bound. Certainly he is bound by the

decision. He was a party to the decision but in my

respectful submission two questions arise. The first

is whether there can be a res judicata or an issue
estoppel in proceedings which are quasi criminal

and, secondly, whether the parties before His Honour

Mr Justice Smart were relevantly privies of the

Crown. The parties before His Honour Mr Justice Smart

were the magistrate before whom the applicant was

taken when he arrived in Australia, the director of

custodial services and a Federal and a State police

officer. (Continued on page 7)

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MR LARKIN (continuing) And, Your Honour, one of the

points which, in my respectful submission, is both

in error and, perhaps, a matter for special leave

is that there is a dearth of authority about whether

government departments, such as the Department of

Custodial Services, and certainly whether police officers are relevantly privies of the Crown.

So, whilst it is, no doubt, true he is bound, the

finding of res judicata goes further than that, and

it says, that as against the Crown he is precluded

from forever questioning the illegality while

His Honour Mr Justice Smart's decision stands.

And, Your Honour, at least in name there is not

an identity of parties. The question must be whether

the parties before His Honour Mr Justice Smart were
privies of the Crown or not. Subject to what my

friends might say, that is one of the points which we

would seek to challenge, Your Honours.

DAWSON J:  Who was going to be stayed, if anyone was going to

be stayed, in the proceedings before Mr Justice Smart?

MR LARKIN:: Well, that is a very interesting question, Your Honour.

I wonder whether the proceedings before Mr Justice Smart

were properly constituted. It is a question that I

cannot assist on.

TOOHEY J: That matter went on appeal, did it not, Mr Larkin?

MR LARKIN:  Yes, it did, Your Honour.

TOOHEY J: And the judgment of the Court of Appeal , does that

reveal the answer to some of these questions.

MR LARKIN:  It does not reveal the answer to the question that

was just asked of me, to the best of my recollection, Your I-bnour.

It does reveal that in the Court of Appeal, the

parties that actively contested the litigation
were the police officers relevantly. It said, if I

remember correctly, Your Honour, that the director

submitted to the orders of the c~urt, as did the
magistrate.	I cannot assist there as to whether or

not the proceedings before His Honour Mr Justice Smart

were properly constituted, but be that as it may, there

is a judgment of a superior court which stands.	The
question then is whether a plea of res judicata
is available and, Your Honours, the point that I

briefly alluded to, it seems to me, with respect, to
be the case that in pure criminal proceedings there

can be no question of res judicata

DAWSON J: There can be an issue of estoppel, or something very

close to it, can there not?

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MR LARKIN: Well, there is a principle prohibiting double

jeopardy but at least on the authorities,in my

respectful submission, that is a different thing.

Res judicata is mutually binding - it is one of

the - - -

DAWSON J:  All I had in mind was, you cannot

go behind the verdict of the jury.	This is STOREY's
case.

MR LARKIN:  Yes, STOREY's case was the case that I was thinking

of.

DAWSON J: That is as far as it goes, yes.

MR LARKIN:  Yes, but STOREY's case say, at least as I understand

its ratio, that there is no such thing as issue

estoppel, at least as far as the majority in

STOREY's case was concerned, in criminal proceedings.

And, if that is the case, the question arises as to

whether an analogous principle applies to

interlocutory State proceedings, which are, of their

very nature quasi criminal, and, Your Honour, that,

so far as I have been able to di:ermine, is not a

question which has previously been specifically

dealt with, and it is obviously a question of great

importance. It is a question of great importance

for very obvious reasons. Frequently there are

committal proceedings and stay proceedings and

proceedings of this nature. It is a matter of

importance whether a person, subject to such

proceedings and failing, to use the ,;rords -well, maybe not

the precise words, but words from STOREY's case.-

why should they be precluded from the opportunity of

improving their position or having another attempt

at trial? And, Your Honours, that is one of the

central propositions that I would, with respect, put

up as a leave point.

DEANE J:  Do we not need to get the basic things a bit clear?

There was proceedings brought by your client in

which the legality of the extradition - - -

MR LARKIN:	Was challenged.
DEANE J:	- - - was challenged and decided against your client.
MR LARKIN:	Yes, Your Honour.
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DEANE J: There was an appeal from that to the Court of

Appeal.

MR LARKIN:	Court of Appeal, yes, Your Honour.
DEANE J:	And no appeal from that~ That was the end of the

matter.

MR LARKIN:	Was taken from that, that is correcc Your Honour.
DEANE J:	Before Judge Knoblanche you sought a stay and sought

to challenge again the legality of the extradition?

MR LARKIN:	Yes, Your Honour.
DEANE J:	On the same grounds that had been rejected in the

s ..ipreme court?

MR LARKIN:  Substantially the same ground& Your Honour.

DEANE J: Which means that quite apart from res judicata

Judge Knoblanche,as a district ¢Jurt judge, would

automatically have applied	the s..ipreme court and
Court of Appeal decisions?

MR LARKIN:  He did not, in his reasoning, do so in terms,

Your Honou~ but it was - - -

DEANE J:  As to the validity of the extradition?

MR LARKIN:  Yes, Your Honour, yes. He did not say, "'.lhose decisions

are binding on me'; in the sense that a lower court

is bound by the decisions of a higher court.

DEANE J:  You say the Court of Appeal went wrong in saying there

was no res judicata?

MR LARKIN:  No, Your Honour, what I am saying the Court of Appeal

went wrong in saying was that they, in a sense,

completely turned their eyes from the question of whether

there was a res judicata.

DAWSON J: · Do you· mean the Court of Appeal 01: the · Court of Criminal Appeal?

MR LARKIN:  I am sorry, Your Honour, the Court of Criminal

Appeal, yes. Where the central finding below was

res judicata and there was an application for

leave to appeal and, presumably, on that basis among

others - - -

DAWSON J: Res judicata has got - if I canask you a question -

nothing to do with it, has .it? I mean they were _-wong

saying that,were they noC because, obviously, it

could not be raised if the accused were convicted

and appealed - - -

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MR LARKIN:	Yes, Your Honour.
DEANE J:	- - - the question of abuse of the process of the court

really does not arise at that stage, does it?

MR LARKIN:	I am sorr~ Your Honour?
DEANE J:	The question of abuse of the process of the court

does not arise as an appeal point.

MR LARKIN: Perhaps I do not quite follow the question.

DEANE J: Well, could you raise abuse of the process of the

court, the court having exercised its jurisdiction,

which it tm.doubtedly had, having decided the case?

MR LARKIN:  I understand the problem,Your Honour.

DEANE J:  You can stop a court exercising jurisdiction where

it is an abuse of process.

MR LARKIN:  Yes,Your Honour.

DEANE J: But if it goes ahead and exercises its jurisdiction,

can that form an appeal point?

MR LARKIN: Perhaps I am- with You Honour's indul8ence,

I am not quite following. Towhich	court are
you referring, I am sorry?

DEANE J: If the prosecution went ahead, the stay having

been refused - - -

MR LARKIN:  Yes,Your Honour.

DEANE J: And the accused were convicted - - -

MR LARKIN:	Yes, Your Honour.
DEANE J:	He then, surely, could not raise as an appeal

point - - -

MR LARKIN:	Yes, Your Honour that precisely - I am sorry - - -
DEANE J:	It is not a question of res judicata, it :;..s just pot sorrething that

forms a basis of appeal against a conviction.

MR LARKIN:  I understand that,Your Hononour.

DEANE J: Because the court validly exercises the jurisdiction

which it did have.

MR LARKIN:	Yes,Your Honour, the point that I - - -
DEANE J:	And the ref ore the Court of .. Criminal Ap:)eal wa::; wrone;

for that reason, not because of any doc~rine of

res judicata.

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MR LARKIN: Well, Your Honour, my submission is that the

district· court was in error in its application

of the doctrines of res judicata and then the

Court of Criminal Appeal was in error firstly,

for failing to deal with that - that being a

question of law which was uniquely appropriate to

be dealt with at that stage and secondly, for

the reason that Your Honour has just said - - -

DAWSON J: Except as Justice Deane points ou4 it is academic.

I mean the dlstrict court judge, whether there

was any res judicata or not, would have followed

the decision of the Court of Appeal.

HR LARKIN: Well, he did not do so in terms. Yes, I understand.

GAUDRON J: Except it bears a different complexion, does it not,

in the context of an impending trial from

that which it bore when it was a question of

application for release from the prison and so on -

well before Mr Justice Smart - and whatever that

complexion be,the question might then be the

propriety of proceeding with a trial - - -

MR LARKIN:  Yes, Your Honour.

GAUDRON J: - - - on the- basis that jurisdiction of the Criminal Court

was founded only by reason of a person being in

the jurisdiction in circumstances where, if things

had gone correctly,he should not be. So, it bears

a somewhat different complexion at trial, does it

not?

(Continued on page 12)

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MR LARKIN:  And moreover, in response to what Your Honour has

just said, it must be true that the proceedings

before His Honour Mr Justice Smart in the

Court of Appeal were highly persuasive so far as

the district court is concerred but since they were, in
essence, interlocutary - perhaps that is not

quite the right word - but they were proceedings

which according to both His Honour Mr Justice Smart

and the Court of Appeal, conducted on the basis of

limited evidence upon the applicant's first arrival

in Australia, it is my respectful submission

that the district court had to deal with an entirely

different matter where the evidence was quite

different and would not, in point of law, have been

bound although I accept, of course, that the

decisions of the earlier courts would be persuasive.

DEANE J:  What do you say the Court of Criminal Appeal should

have done, sent it back to Mr Justice Knoblanche to

deal with on the basis that he was free to decide

the extradition was unlawful?

MR LARKIN:	Yes, Your Honour.
DEANE J:	Did His Honour reject evidence?
MR LARKIN:	His Honour made certain adverse findings which

I would - - -

DEANE J:  I appreciate that but His Honour heard all of the

evidence, did he not, to go to a discretion as to

whether there was an abuse of process?

MR LARKIN:	Yes, Your Honour.
DEANE J:	All he did not do was to redecide the question which

had been decided by a supreme court judge in the unlawful or illegal.

MR LARKIN:  It is, with respect, Your Honour, not in law

the same question because the evidentiary materials

were very different but, yes, Your Honour, I accept

what has fallen from Your Honour.

.BRENNAN J:	I am not sure whether your acceptance might not be too ready having regard to the answer you gave to
Justice Gaudron because on the first case, that is,
before Justice Smart in the Court of Appeal, the question was whether the illegality - if that is the
right word to use - about his importation into
Australia was such as to make his custody unlawful.
The question before Mr Justice Knoblance is, whether
or not, custody being lawful or unlawful - - -
MR LARKIN:	The proceedings were an abuse of process.

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BRENNAN J:  - - - it is an abuse of process to conduct the

trial.

TOOHEY J:  Is that correct, Mr Larkin? I only ask you that

because just looking at the headnote of the

Court of Appeal decision and without having read the body of the judgment, the beginning:

Subject to any statutory provision to the contrary, a person physically within New

South Wales is amenable to criminal

process in this State regardless of the

circumstances in which he came or was

brought here.

Now, that goes beyond questions of custody. You said

that headnote correctly reflects what was said.

MR LARKIN:  Certainly, it is my reading of the Court of

Appeal's decision that they dealt with the abuse of

process question.

BRENNAN J:	They dealt with that?
MR LARKIN:	They did, Your Honour, in the Court of Appeal.
BRENNAN J:	And held there was no abuse of process?
MR LARKIN:	Yes, they held there was no abuse of process in

the Court of Appeal.

TOOHEY J:  That is why I was going to put to you if, in fact,

Judge Knoblance had said on page 5, without

making any reference tor.es judicata, that your client

was:

precluded from litigating before me questions
of the lawfulness of the extradition of the

accused from the USA to Australia -

by reason of the decision of the Court of Appeal.

Could you have had any complaint about that statement? (Continued on page 14)

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MR LARKIN:  Yes, Your Honour, because precluded, one would

have to inquire as to what that meant and if what

it meant was that His Honour was in substance

holding that there was a res judicata or an issue

estoppel;without using the words then, in my

respectful submission, the same position would

be reached and Your Honour, in my respectful

submission,the precluded can only be reached by

a res judicata or an issue estoppel on this

basis, Your Honour.

The majority in STOREY draw a distinction

between res judicata which is a matter that applies

in civil proceedings and the principle precluding double jeopardy. The principle precluding double jeopardy is binding on the Crown but not binding

on the accused whereas the fundamental tenant of

res judicata or issue estoppel is that there are

mutual estoppels and the majority in STOREY's case

recognized that these are different principles.

Perhaps I might refer Your Honours to the passage

in STOREY's case of which I am thinking. In

the judgment of the Chief Justice at the bottom

of page 371, His Honour refers to HUMPHRYS' case

and says:

I find that the reasons given by Lord Dilhorne
HUMPHRYS' case for concluding that resort to
the principles of issue estoppel ought not to
be had in the trial of criminal offences quite
convincing. In my respectful opinion, both

the reasons and the conclusion are correct.

For my own part, I find the principles of

issue estoppel as utilized in civil
proceedings wholly inappropriate to criminal
proceedings and, as well, more likely if

used to. complicate criminal trials than to

make any contribution to the administration

of criminal justice.

Further down the page, on page 372, towards the

foot: 

But the citizen must not be twice put in

jeopardy, that is to say, as relevant to
the present discussion, must not be placed

at the risk of being thoug~t guilty of an

offence o-f which he has been acquitted, or

of in any sense being treated as guilty.
It is the use of the evidence given on the

prior occasion to canvass the aGq~ittal

which, if allowed, would offend the

rule against double jeopardy - - -

DAWSON J:  Of course, he is talking there in the context of
a jury trial where there are not any issues, at

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least not ones that can be identified in relation

to the decision. These proceedings were not that

sort of proceedings,were they?

MR LARKIN:  No, they were not jury proceedings, Your Honour,

but, with respect, they were criminal proceedings

in nature and certainly I would seek to draw a

distinction between. civil proceedings and criminal

proceedings rather than -

DAWSON J:	I am not sure that they were.	They were proceedings
for a declaration of - - -

MR LARKIN:  The proceedings before, yes, His Honour

Mr Justice Smart certainly were but the proceedings

in the district court were certainly of a different

nature.

(Continued on page 15)

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DAWSON J:  The res j udicata they· are talking about are

the proceedings before Mr Justice Smart, are they

not?

MR LARKIN:  Whether they can be a res judicata in the

proceedings in the istrict ourt as a result of

the decision of Mr Justice Smart?

DAWSON J: Yes.

MR LARKIN:	Yes and - - -
DAWSON J :	For my own part I think the Court of Criminal Appeal were

wrong arr'J'way, so it does not matter.	That is my present view - not
on the basis of res judicata.	We are not really

getting to the point of substance here ,are we

really, your real special leave point?

Mayhe that is not your fault.

DEANE J:	Mr Larkin, before you get beyond that can I just get back to the facts. Is LEVINGE V DIRECTOR OF CUSTODIAL SERVICES the case in the Court of Appeal?
MR LARKIN:	That is the one that is reported.

DEANE J: And that is your client,Levinge?

MR LARKIN:  Yes,it is, Your Honour. Yes.

DEANE J: Well, that report indicates that the proceedings

before Mr Justice Smart were an application for a
stay of proceedings on the grounds of abuse of
process in which the unlawfulness of the extradition

was one aspect of the matter.

MR LARKIN: Yes, Your Honour.

DEANE J: Abuse of process was refused or rather a stay was

refused by Justice Smart. It then went on appeal

to the Court of Appeal, which held that while

unlawful,extradition could, in some circumstances -

unlawful procees -warrant a stay, the circumstance

of this case did not warrant a stay, even assuming

illegality in the procedure from Mexico to the

United States.

MR LARKIN: Well, I do not know that -

DEANE J: That was the way I read it.

MR LARKIN:  No, I do not know that that is the way that I read it.

DEANE J: Well then, putting that aside, it seems that the very

question litigated in the Eupreme court and taken to

the Court of Appeal - - -

MR LARKIN: Is the same question.

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DEANE J: -. - - is the question whether there should be a stay

of these very proceedings.

MR LARKIN:  Yes, Your Honour.

DEANE J: And then it went on before Judge Knoblanche who

heard all the evidence and dealt with the question

of an abuse of process.and refused a stay.

MR LARKIN:  He did deal with all of the evidence and refused

a stay,' that is true, Your Honour.	Your Honour,
the difficulty is there are two difficulties.	I
come back to the point which I was not able to
offer much assistance on earlier and that is the
constitution of the proceedings before His Honour
Mr Justice Smart, because the parties before

His Honour Mr Justice Smart were the police officers

and the Director of Custodial Services and it appears -

and perhaps my friends might be able to help here if

they know, but it certainly appears that the Crown

simply was not a party to the proceedings, which is

very curious, because presumably it is only the Crown

that seeks to prosecute; that has within its discretion

to prosecute; and only against the Crown that that

relief would have had any utility, but - - -

DAWSON J: What were the proceedings which it	sought to stay?
MR LARKIN:	These prosecutions.
GAUDRON J:	The committal proceedings, was it?
MR LARKIN:	Yes, the committals, yes. I beg your pardon, Your Honour.
GAUDRON J:	So there was proceedings on information before

a magistrate.

MR LARKIN:	Yes, the committal proceedings, thank yo½ Your Honour.
DAWSON J:	And the informant was a
GAUDRON J: - - - a police officer.
MR LARKIN:	Yes, that would explain that. Your Honour, the question then is having decided that at the committal
stage at leas·t one of the questions is whether the
district court was entitled then to say that there
was a res judicata when there were not identicality of parties.

TOOHEY J: Well just putting aside the language of res judicata

for a moment, Mr Larkin. Do you accept that the

decision of the Court of Appeal had any relevant adverse

consequences for your client, that is, relevant to the

matter now before this Court?

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MR LARKIN:	It had adverse consequences that were relevant.
For a start the applicant was committed for trial,
no stay issued against the committal and he was, in
fact, committed to the district court. Certainly,
that was an adverse consequence and there is no
doubt that he is bound by the decision, but the
question that I would, with respect, try to put is
whether the Crown is entitled to rely on it as an
absolute bar to raising that question again and,
on the authorities as I have comprehended them,
that can only be the case if they were privies.
GAUDRON J:	Then the further question arises, does it not, if

you are writing that, and that is how do you say, or

in what way do you say the illegality attending the

extradition is relevant to whether or not a stay

should be granted; just as a factual circumstance

to be taken into account or in some way as impinging

directly on something else?

MR LARKIN:  Yes, I understand the problem. I could not put that

the applicant not being present was not amenable

to the jurisdiction and, therefore, it can only go to

a judicial discretion. I could not contend to the

contrary of that but, nevertheless, there are

authorities where such discretions have been
exercised on the basis of similar fact situations.

So I would say, Your Honour, in answer to your

question, that it is highly relevant to the exercise

of a judicial discretion.

GAUDRON J:	Well, that does not really answer the question.
MR LARKIN:	I am sorry, Your Honour.
GAUDRON J:	For example, it seems to me there, if you look to the discretion to exclude evidence that is otherwise
admissible, within limits there are policy considerations
that can be taken into account as to illegality of the Crown - - -

MR LARKIN:	Yes.
GAUDRON J:	I am just wondering whether you raise it as a

policy matter that ought to be taken into account

MR LARKIN:	Certainly I would, Your Honour.
GAUDRON .J:	- - - in relation to the exercise of jurisdiction

and whether you then go that step further and say,

''Well, where it actually is a court exercising judicial

power, the policy considerations, which are, in fact

of higher importance, when the jurisdiction only

exists because the person is present in the

jurisdiction as a result of something that should not

have happened, or, perhaps more precisely, as a result

of a decision by Australian authorities to accept a

surrender which they knew - - -

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MR LARKIN:	Was tainted?
GAUDRON J:	Yes.
MR LARKIN:	Yes, Your Honour.
GAUDRON J:	I just want to know how you put it.
MR LARKIN:	Your Honour, it seems to me that there is a

jurisdiction over a person present physically in

any event but, having said that, the point that

Your Honour raises was at the centre of the proceedings

that occurred before Mr Justice Smart, and it is a

point, certainly, that I would seek to put.

GAUDRON J:  There may be a difference, you see, in terms of a

ministerial inquiry of committal proceedings, the

exercise of powers under a ministerial inquiry - - -

MR LARKIN:  And the exercise of judicial power.

GAUDRON J:  - - - and the exercise of judicial power, in the circumstances. Do you -

MR LARKIN:	Yes, Your Honour, and the policy considerations that might attach to the exercise of judicial power
in circumstances where there has been some antecedent
illegality would seem to me to, with respect, be more
weighty than merely ~heri dealing with an inquiry,
an administrative inquiry.

(Continued on page 20)

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DEANE J:  As a matter of principle, do you disagree with what

Mr Justice Kirby said in LEVINGE? That is, that

when a person is before the court, it has

jurisdiction, but if he is being brought there

as unlawful, that is a relevant factor in deciding

whether proceedings should be stayed, that that

is all that it is?

MR LARKIN:  Your Honour, it is a matter of, with respect,

the emphasis that is put on the second part of the

proposition. True, a court has jurisdiction but

courts, with respect, are keen to see that their

processes are not tainted by antecedent illegality

and so, whilst I would accept, with respect, that

there is jurisdiction, it seems to me that antecedent illegality is a very weighty matter that in the usual

course of events would weigh very strongly in favour

of the exercise of the discretion.	I would put it
that way, if that - - -

DEANE J:  But, the court made the point that the Australian

authorities were not involved in the illegality,

that having been found as a fact by Justice Smart.

MR LARKIN:  Yes, Your Honour. Certainly, he did find that as

a fact.	Two questions arise from that and that is,
whether Australian authorities - to use a term that, I	t:nink, also occurs in Mr Justice Smart I s judgment
perhaps picking up submissions put on behalf of the
applicant at the time, should be entitled to, albeit
that they were innocent, take the fruit of
illegality, albeit illegality of foreign agents.
That is the first question - - -

GAUDRON J:  Who were - well, at least so far as they were

American - acting upon the request of Australian authorities. The Americans did not - I mean, under

extradition law, they do not do these things of

their own initiative. They proceed only in

consequence of a formal request.

MR LARKIN:	So that there can be no doubt, we would put and would want to put, that it can be inferred that the
Australian authorities were involved in the manner
that Your Honour has suggested.  Now, as Your Honour
Mr Justice Deane has pointed out to me -
DEANE J:	Now, let us just pause there. Did not

Judge Knoblance hear all the evidence on that a

second time and find as a fact that they were not?

MR LARKIN:  He did so, yes, Your Honour, and I would accept

that unless I can attack those findings in another

manner that I would have difficulty but I seek to do

that on another basis. There is no doubt that he did

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hear all the evidence and that he did make that

finding as a finding of fact. It is a finding

which we challenge - - -

BRENNAN J: What finding is that?

MR LARKIN:  He found that there was positively no Australian

involvement in the circumstances of the removal

from Mexico to the United States and, secondly,

he finds that there was no illegality attendant
upon it and there is no doubt that he does find that.

I would seek to challenge that in another manner.

DAWSON J:  You say you really had no chance to contest that

before the Court of Criminal Appeal because they

refused leave on wrong grounds?

MR LARKIN:  Yes, Your Honou0,they did. They refused leave

on, with respect, manifestly wrong grounds. Which

brings me to, if I might take Your Honour Mr Justice Deane's
point, the basis on which I would seek to side-step

the findings that were made by His Honour Judge Knoblanche

in the district court. Therein lies the central

difficulty with this case and, that is, that as a

general principle certainly I would accept that

appellate courts do not review findings of trial judges

based on credibility without the advantages that

trial judges have. But, Your Honour, there is

some very interesting specific findings in

His Honour's judgment which may have the effect that

the entire judgment ought to be set aside.

(continued on page 22)

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MR LARKIN (continuing):  They fall centrally into two or three

categories. The first is, Your Honour, with respect,

there is a fairly surprising finding about handwriting.

It is surprising because it appears - well, it can be,

with respect, inferred from His Honour's judgment

that His honour had no expert evidence in relation

to handwriting before him, and - I will return to

that in just a moment. The second related to findings

that certain matters had not been followed up in the

manner that they ought to be to gather evidence for

the trial and, in particular, there were statements

that His Honour made in his judgment about legal aid

and what legal aid would pay for, and so on.

Now, so far as those are concerned, I run here

fairly and squarely into the difficulty that

Your Honours do not have the transcript of what went

on before His Honour in the application book, and

that is a difficulty of which I had adverted to which

was, with respect, not something that we had specific

control over, and all I would do is put it this way.:

ll Your Honours were minded to grant leave then, in

my respectful submission, it would be necessary to

include those materials in the application book.

DEANE J:	What would you be asking if leave were granted
because the appeal is from a refusal of leave by the Court of Criminal Appeal? Would you be asking
that we overturn their refusal and send it back to
them to consider, freed of what you say is the error on page 37?

MR LARKIN: Certainly, Your Honour, that is a course that would

be open to this Court, and it may well be a course

that Your Honours might find attractive, but having said
that, also, there is no doubt that this Court has

the - - -

DEANE J: That is so, except, you see, your problem with the

refusal of leave is the Court of Criminal Appeal has

made it fairly clear that the few sentences to which	you point are not really the decisive matter, and
said that is not of itself a ground. Why they really
refused leave was that your client had had his day in
court before Justice Smart on this very issue. It had
gone on appeal to the Court of Appeal on this very
issue. It had then come up yet again -

MR LARKIN: Resurrected before Judge Knoblanche.

DEANE J: Well now, in that situation you can well understand

why - - -

MR LARKIN:	They were reluctant to deal with it.
DEANE J:	- - - they might take the view,"Really this is not an appropriate case to go into it all yet again:'

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MR LARKIN:	Yes.	Your Honour, there are two - with respect,

I would put two answers to that. The first is

either there is a res judicata in which case the
applicant is precluded or there is not, in which

case, in the interests of criminal justice; in the

interests of preserving liberty so far as possible,

he was entitled to litigate those things again.	And
the second answer, Your Honour, is that I would
also put that the Court of Criminal Appeal was

wrong in refusing to grant leave for other reasons -

for the central reason that the judgment below was,
with respect, manifestly wrong for the reasons which

I have begun to advert to. For those two reasons,

Your Honour, I would submit that the words that I have

pointed to are perhaps not so unimportant and, in

addition, that there is another ground, quite apart

from that error upon which the Court of Criminal

Appeal erred. And Your Honour, if I might briefly

make one -4:lther point·.

(Continued on page 24)

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MR LARKIN (continuing): I appreciate, with respect, that the

liberty of the subject is not usually a sufficient -

or indeed perhaps even relevant - but, nevertheless,

c er ta in 1 y , ·not t o p u t i t too highly, s u f f i c i en t g round

for special leave and that may well - - -

BRENNAN J:	It is a good help.
MR LARKIN:	Yes, that is so, Your Honour.  What I was about to

put to Your Honour is that this is an exceptional case.

We are not dealing merely with liberty of the subject.

We are dealing with a situation where the applicant

is in Australia, literally on the other side of the

globe from where he would like to be and separated

from his family and child and, Your Honour, those

'	matters are relevant when considering whether leave
should be grant, even though, perhaps, liberty is not
a matter that ordinarily of itself would be a ground, but I would put that. Your Honours, if I might go to
the finding about handwriting, which is a -

BRENNAN J:  Before you do, could I just ask you this question

because I think I understand your argument about

res judicata and the lack of identity between the two

questions.

MR LARKIN:	And the parties.
BRENNAN J:	And the parties. It seems to me that irrespective

of the parties the issues that fell for determination

in the first case are so similar to the issues that

fell for determination in the second case that, unless

there was a radical difference in the evidence between

the two cases, it is unthinkable that the Court of

Criminal Appeal would have come to a different

decision from that at which the Court of Appeal came

to in the first case, having regard, especially,
to the findings of fact made by Judge Knoblanche.

Now, if that is so, even if the Court of Criminal

Appeal was wrong in the reasons which they assigned

for refusing you leave, is it a case which we should

grant special leave in for the purpose of sending it

back to the Court of Criminal Appeal to hear and

determine with the almost foregone conclusion that they

will be adverse to your client?

MR LARKIN:  Your Honour, with respect, implicit in the statement

that has just fallen from Your Honour is that the findings

of fact of Judge Knoblanche will stand and,

certainly, that is something, with respect, that I

wuu1.d tilt at and it is my respectful submission that

they have to fall for altogether other reasons and if it is the case that Your Honours were minded to accept that submission, then much of the force in

what Your Honour has just put to me, with respect,

would not be there. It would be an altogether different

sort of case and in a very real sense that is the way

C2Tl2/l/HS	24	2/3/90
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that I seek to, with respect, lift this case.

It would be an extraordinary case where Your Honours

would grant special leave to appeal from a decision
refusing leave to appeal from a stay proceeding but,
Your Honours, if there is something, with respect,
manifestly wrong with what happened at first instance,
then it is an appropriate case. If I. am successful

in tilting at the findings of fact below - the findings

of fact below, if they were to fall, then we would
be dealing with a case that would not be in the

category of case to which I, with respect, understood

Your Honour to put it.

TOOHEY J:  Mr Larkin, when you speak of findings of fact - and

I am not inviting you to take us to specific findings -

are they findings of fact which would in any way

disturb the conclusion reached by Mr Justice Smart

and upheld by the Court of Appeal that there was no

illegality or irregularity in the extradition of your

client from the United States to Australia?

MR LARKIN:  I am sorry, Your Honour. Would you repeat that, , please?

TOOHEY J:  That may not be easy, Mr Larkin, but I will try.

MR LARKIN:  I am sorry, Your Honour. I did not follow.

TOOHEY J:  You were foreshadowing an attack on findings of fact

made in the district court.

MR LARKIN:	Yes, Your Honour.
TOOHEY J:	My question, in essence, was whatever defects there

may have been in those findings of fact, there was

a conclusion reached by Mr Justice Smart and upheld

by the Court of Appeal that there had been no

illegality or irregularity in the extradition of your

client from the United States to Australia. Now, let

us assume that you make good this attack on the

district court findings that you speak of, would they

in any way disturb the conclusion reached by

Mr Justice Smart and upheld by the Court of Appeal?

MR LARKIN :  Your Honour , the answer , w i th re spec t , i s , " Ye s " ,

not directly, but for this reason. The Court of Appeal

has proceeded on the basis - it referred to a

document which was in evidence before His Honour

Mr Justice Smart on the first occasion which allegedly

details the criminal record of the applicant, allegedly

in the United States.

(Continued on page 26)

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MR LARKIN (continuing):  Now, Your Honour, it seems that that

document may not have been properly admissible, the

difficulty being that the matter is now 3 years

overdue and thoroughly, on any view, closed. But

if one looks at the reasons of the Court or Appeal

they seem to have rejected the evidence of the

applicant, very substantially if not in total - perhaps

not quite totally	but they attached a great deal
of weight to this document.	Now, Your Honour, if

in subsequent proceedings in the district court or

wherever that document were not in evidence properly

then, ouce again, we would be dealing with a very

different set of evidentiary facts to those that

presented on the first occasion in the haste that no doubt followed the arrival of the applicant in

Australia and, Your Honour, therein lies the

difficulty. If there is a res judicata then the

applicant is forever precluded from seeking to
challenge this evidentiary problem that lies, from
the apllicant's point of view,at the centre of the

findings of the Court of Appeal and His Honour

Mr Justice Smart and he is precluded. On the other

hand, Your Honour, if there is no res judicata, if
he were successful in his challenge to that sort of

evidence then it may be that a different outcome -

certainly it was the case on my reading, with

respect, of what happened in the Court of Appeal,

had that document not been in evidence there may

have been a different result. This is hyp0thetical, but

therein lies the central point in the case, with

respect.

DAWSON J: Now, apart from the question of res judicata, is

there any proposition of law in any of the various

judgments that you want to contest?

MR LARKIN: Well, yes,Your Honour, it is a question of law

whether His Honour Judge Knoblanche was entitled

to make findings of the sort that he made with respect to handwriting and legal aid and so on

and those matters I would seek to put on the level

of the question of law and I would certainly seek

to ch~llenge those and,. with 7espect 1 I would submit	that if I were ~successful m my tilt at tnose, that
the whole of His Honour's judgment must go, with respect. So,yes, I would also seek to challenge those and to put those on the level of questions
of law.
The way that I would perhaps indicate the question might be framed is a trial judge, having
come to an adverse view on credibility entitled,
if this be what happened, to therefore leap,
with respect, to a finding that the applicant was
engaged in fo-l!gery and, by imp lie a tion, perjury
without expert evidence, without indeed any evidence

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other than a layman's comparison and even if it

were the case,Your Honour, with respect, that that

to a layman's eye looked that way, the

question would arise as to whether in the interests
of justice trial judge ought not to jump to such
conclusions, if that be what happened, in order to

preserve the appearance of regularity in proceedings

such as these.

Your Honour, the same point, with respect, goes

to the legal aid matters only, with respect, more

so and I frankly concede the difficulty that I have

here is that the matters that I,would seek to

challenge, so far as His Honours conclusions about

avenues for legal aid, are not in the application book.

(Continued on page 28)

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MR LARKIN (continuing):  I cannot take that much further without

giving evidence from the bar table which I am loathe

to do but Your Honour, certainly if Your Honours

were minded to grant leave or if the matter were

remitted to the court below, that is a matter that

we certainly would tilt at with vigour.

It must be true that a trial judge has some

familiarity with legal aid processes but His Honour

makes a finding in essence that certain avenues

have not been carried out in the way that they

ought to have been carried out and the pleading

that I seek to raise in the draft notice of appeal

is that there was no evidence to that effect

before His Honour and that, in any event, it

was simply wrong. I cannot really take that much

further but Your Honours if my attacks on handwriting

and legal aid are successful, then it is my

respectful submission that the whole judgment, at

first instance, must go.

DEANE J: And, what would be the result of it going? What would

be the facts that you would say would then emerge?

MR LARKIN:  Your Honour, that would put us in the difficult

situation of - either the matter would have to be

dealt with at trial or it would have to be dealt

with at a similar sort of proceeding but Your Honour

the advantage that would flow, the real and significant

advantage that would flow to the applicant should

that happen is that he would not have to go

to trial with a finding of the sort that has

been made by Judge Knoblanche as the background

and, with respect, that must be a gravely

prejudicial thing for someone to be forced
to conduct a defence against the background

of a finding such as the one that presently

exists. So, even if nothing more were to happen -

and it as not my submission that that is appropriate -

but even if nothing more were to happen than that

that judgment would be set aside, that those findings

would be set aside, that would be a very real

and significant advantage to the applicant,

with respect.

DEANE J:  But Judge Knoblanche's findings could not go

before the jury, could they?

MR LARKIN:  No, they could not but they certainly would

be before the trial judge and, with respect,

that may - quite apart from whether it would

influence or not, one of the other problems

again, is justice being seen to be done.

Your Honours, if my submissions as to

findings on legal aid and handwriting are correct,

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and if Your Honours accept that the interests

of justice simply, in the ordinary course of

events will require this decision to be set

aside notwithstanding and that is on my respectful
submission the case - notwithstanding that the same decision

may have been reached absent those particular

findings. If it is true and it is my respectful

submission that it is the case that if the plea

against those matters is made out, the appearance

of regularity requires the decision to be set

aside, then with respect, the applicant ought

to be entitled to that because, as I have said,

it is a question not merely of the effect it

might have on a jury but also of justice being

seen to be done Your Honours.

TOOHEY J: But, is there anything in the decision of the

Court of Criminal Appeal that can be read as

endorsing the conclusion of Judge Knoblanche -

MR LARKIN:	Yes, Your Honour, with respect.
TOOHEY J:	I have not finished the sentence.

MR LARKIN: Sorry, Your Honour.

TOOHEY J:  Of endorsing His Honour's conclusion of res judicata?

MR LARKIN:  No, Your Honour. No, if anything it seems that

the Court of Criminal Appeal have not addressed
their minds to the question, with respect, in

the judgment.

TOOHEY J:	Or addressed their minds to the question but found
it unnecessary to reach your conclusion.

MR LARKIN: No, with respect, Your Honour. It simply, with

respe~t, is inconsistent.

(Continued on page 30)

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MR LARKIN (continuing):	The statement that they make that
~	the applicant would be free to take this point
-	a~ain at a later time in legal proceedings is

·S~mply, with respect, inconsistent with res judicata.

BRENNAN J: ·· Hould it be right to say that if Judge Knoblanche' s

findings stand that it is unthinkable that the Court

!t:	of Criminal Appeal would come to a decision different	from
that of the Court of Appeal?

MR LARKIN:	Yes, Your Honour, certainly that is right.
BRENNAN J:	Well then, in order that we should send it

back to the Court of Criminal Appeal

· we should_ be satisfied that there are at least

substantial grounds for thinking that Judge Knoblanche's

decision might be set aside and that would involve us,

would it not, in an examination of the facts of the

case?

MR LARKIN:  Your Honours, it would, but only to this extent.

make the inferences that he drew. Those questions,

Only to the extent that the plea made is that

true, involve some examination of the facts, but not

a very onerous or central one. True it involves

an examination of the transcript in order to

determine what the evidence was, but with respect,

that is no different a task to appellate courts

central to the inquiry.

BRENNAN J:  I appreciate that. The only point I was seeking to

get you to is this, that from the point of view of

this Court, our decision would not resolve any

question of law. It would be designed to show simply

that Judge Knoblanche's decision was open to attack

before the Court of Criminal Appeal and that the
reasons assigned by the Court of Criminal Appeal for

refusing leave to appeal were not correct.

MR LARKIN: Well, with respect Your Honour, that is something

that I would tilt at and in - - -

DAWSON J: Other than questions of the law of evidence.

MR LARKIN: Well, Your Honour, I do not know that I would put

it on the question of -

DAWSON J:  But those are the only questions of law you have

averted to.

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MR LARKIN: Well, no. There is a preliminary inquiry to

be made as to whether there was evidence of that

nature before him or not and then that is a

preliminary inquiry and it is entirely incidental

in many respects. If it be the fact that there was

not expert evidence before him or expert evidence
of legal aid procedures, is he then, with respect,

entitled to draw the conclusions that he did, and

that is not a question of the law of evidence,

Your Honour,and then secondly, the second inquiry

then is a pure question of law, does public

perception, in the administration of justice,

require that the decision be set aside? I accept

what falls from Your Honour :in so far as it is a

preliminary inquiry and a necessary step in the

chain, but, with respect, it is not the only question

and indeed, in my respectful submission, it is by

no means the central one. If it were the fact that

His Honour was entitled to do those things as a

matter of law, then that would be a pure question of

law and indeed the matters-agi.tatecl~efore-the

Your Honours, with respect, would be pointless.	But
Your Honours, it is certainly my submission that

His Honour was not entitled to make the findings that

he did and that that is a question of law and well

removed, indeed, from the law of evidence, with respect.

GAUDRON J:  Mr Larkin, could I ask you this. On the findings of

fact that have been made against you, does it appear

even so or is it only a matter of your affidavit, that

the Australian officers knew that something had

happened in Mexico about which your client complained?

(Continued on page 32)

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MR LARKIN:  Your Honour, it does appear and it appears in the

judgment, I think, from memory, of Mr Justice Smart.

GAUDRON J:  Now does it also appear that the Australian officers

accepted a surrender of your client and brought him to

Australia knowing that he had not exhausted his

appeals in the United States of America?

MR LARKIN: Certainly it does appear.

GAUDRON J: 

Has anyone, at any stage, ever adverted to the

question whether the fact that Australian officers
accepted the surrender knowing that complaint

was made about what happened in Mexico, knowing that

the appeals had not been exhausted in the United

States, was a matter which ought to be taken into

account by the Court as a matter of public policy

in deciding whether it would exercise its jurisdiction

which existed by virtue of his presence in Australia

in those circumstances?  How has that question ever

been considered?

MR LARKIN: So far as I am aware, Your Honour, no.

DEANE J: What part of it has not been considered?

MR LARKIN:  The question as to whether it is a matter that goes

to i:the discretion to stay that the applicant's

appeal rights in the United States had not been

exhausted and that complaint was made before American

courts of the matters substantially that were raised

before His Honour Mr Justice Smart. So far as I am

aware, that point has not been raised, one of the

difficulties, of course, being that in the proceedings

beforeJudger-Knoblanche the applicant appeared in

person.

DAWSON J: It has not been raised,you say?

MR LARKIN: No, Your Honour, that is correct. That particular

point has not, so far as I am aware.

DEANE J:	Mr Justice Smart says the matter got as far as the
United.States Court of Appeals for the Ninth Circuit.and that court said the facts underlying
Mr Levinge's claim were not in dispute. And
apparently the American courts held that as regards
what happened in Mexico, they were not persuaded
that America had been a party to it.
MR LARKIN:	It is contended by the applicant that in American law there has been illegality and that in American
law the applicant was entitled to avoid the
extradition to Australia.  Your Honours, it is the
case that appeal rights had not been fully exhausted
in the United States. But what falls from Your Honour
is correct in that matters were raised in the

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United States, did reach as far as the Court of

Appeals for the Ninth•Circuit. Your Honours,

I understand what happened at that point and

perhaps this appears from the applicant's

affidavit - I am sure it does actually - is that

a petition was made for a hearing, I believe it was called, en bloc, and that prior to the time
when the hearing was to have occurred the

applicant was surrendered to Australian authorities

and removed from their jurisdiction and that on the

basis that the question sought to be agitated
before the Court of Appeals for the Ninth Circuit

had become moot, it declined to do so. That I

understand, Your Honour, is the factual background.

(Continued on page 34)

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MR LARKIN (continuing):  In answer to Your Honour

Justice Gaudron's comments, to the best of my

knowledge no one has raised that very question.

GAUDRON J:  What was your client doing in what ·is

referred to at page 9 in the decision of

Judge Knoblanche,when he said:

As I understand this particular section

of his argument it is that it would be

unfair to send him to trial because to do

so would seem to condone the grossly cruel

and unlawful conduct to which he had been

submitted.

MR LARKIN:  Your Honour, what I understand the

submission made by the applicant before His Honour

Judge Knoblance was, that what had gone on

was contrary to American and Mexican law and I

understand that that was the basis of that submission.

GAUDRON J:  Yes, but how was Judge Knoblanche to use it?

I cannot ascertain from his decision whether he used

it or did not use it at all.

MR LARKIN:	Well, with respect, it seems from reading the decision that he did not use it but that is on
my reading of it, Your Honour.
GAUDRON J:	Yes, that is as I read it, too. That is, that a

submission which would seem to encompass what

I put to you has not been dealt with and, therefore,

and it would seem in the context of this particular

decision, that if those matters are relevant to the

exercise of discretion, that a relevant consideration

has not been taken into account.

MR LARKIN:  And, Your Honour, that is the point - - -

GAUDRON J:  Which you, of course, were excluded from raising in the Court of Criminal Appeal by reason of that

they said, "Well, all of those matters can be dealt

with by way of appeal later on".

MR LARKIN:  Your Honour, with respect, that is the point that

I have alluded to in paragraph 19 - or that the applicant has alluded to in paragraph 19(b) of the

affidavit.

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MR LARKIN (continuing): And, Your Honour, here again I run

into the difficulty that I do not have before this

Court the transcript of what went on below.

That is a difficulty that I am stuck with. His Honour

the Chief Justice, on the occasion when I appeared

before him and Your Honour Justice Gaudron and

Justice NcHugh - His Honour the Chief Justice made it

quite plain that this matter was to be dealt with

today and, despite the fact that I ~ight well have

liked to have somehow got the transcript in,

practically that was not a possibility. Now, the way

that I have proposed, with respect, to deal with it

today was, that if Your Honours were minded to grant

leave, then I would, with respect, submit that

there could be a separate appeal book prepared and

it be dealt with in the manner, more or less, that a

civil appeal be dealt with. I, with respect, understand
there is a custom of the Court to deal with

criminal appeals at the same time as the application

for leave.

The circumstance under which the book was prepared,

with respect, in one that we cannot get - - -

BRENNAN J:	I think we appreciate that.
MR LARKIN:	Thank you.

BRENNAN J: And what you seek at the moment is an-· order for

special leave to appeal - - -

MR LARKIN:	Yes, Your Honour.
BRENNAN J:	- - - and then to stand the matter over so that you

prepare the appeal book and prosecute the appeal on

the footing of that - - -

MR LARKIN:  Yes, Your Honour, and one of the points that certainly

I would seek to take on appeal is the point that

Your Honour has alluded to which, as I have said, is

reflected in paragraph 19(b) of the affidavit.

BRENNAN J: What order would you be seeking at the end of the

appeal if special leave were granted and you succeeded

on the appeal.

MR LARKIN:	It would depend on what view the Court took of the matter. The principal relief that I would seek is,
I would, with respect, invite the Court to exercise its power which it, with respect, clearly has, to set aside His Honour Mr Justice Knoblanche's decision for the reasons that I have alluded to in respect of the
findings on handwriting and legal aid, and also to make
a, with respect, finding on whether or not res judicata
precludes the applicant from reagitating these matters.
That is a pure question of law. With respect, it is a

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point of great importance beyond these proceedings for

this reason: the relationship between police

officers and the Crown and magistrates and the Crown obviously are matters that will arise in

litigation - that do arise in litigation frequently,

so I would also seek some guidance, with respect,

from this Court as to what the position should

be at trial with respect to res judicata issue

estoppel if there is one.

(Continued on page 37)

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MR LARKIN (continuing):  But as I said, I would also seek,

with respect, to set aside the decision of

Justice Knoblanche in toto on the basis that I

have indicated; that is, both handwriting, legal aid

and paragraph 19(b).

BRENNAN J:  Would our order not simply be to allow the appeal

from the refusal by the Court of Criminal appeal to

grant leave?

MR LARKIN: Well, with respect, if that were something that

Your Honours were minded to do, that is not something

that I would oppose. Certainly that would be my

alternative submission, with respect. I would put

that as an alternative and it may well be, with

respect, that that is a convenient course for the

Court to adopt for this reason: the Court of

Criminal Appeal has not had before it the materials

that I would seek to put into an appeal book here.

With respect, it matters not whether those matters

are agitated - well, I suppose I withdraw that.

There is an advantage - a very real advantage -

in so far as the applicant is concerned in clarifying

the questions about privies of the Crown and

res judicata for this Court to deal with it rather

than for the Court of Criminal Appeal to deal with

it. That is an advantage, with respect, the Court

is presented with an opportunity to deal with the
question of privies of the Crown and res judicata.

With respect, it is a question that has not ever - so far as I have been able to determine -

come before this Court again and I would, with

respect, suggest that it is an appropriate matter

for the Court to deal with. If it were the case

that Your Honours were minded to return the matter

to the Court of Criminal Appeal on that basis,
then that wo·uld achieve for us an end which was

nearly as good and I would not oppose that.

BRENNAN J: Thank you.
MR LARKIN:	Thank you, Your Honour.
BRENNAN J:	The Court will adjourn briefly to consider the

course it should take in this matter.

AT 4.12 PM SHORT ADJOURNMENT

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UPON RESUMING AT 4.22 PM:

BRENNAN J:  We need not trouble you, Mr Hastings.

Mr Larkin, who has appeared in this matter to

ensure that an accused who has no legal aid will not

go unrepresented, has given the Court the benefit of

an interesting and able argument in a difficult case.

However, by majority, we do not think that this is a case in which special leave should be given.

The substantive point on which the applicant seeks

special leave to appeal is that the Court of Criminal
Appeal erroneously refused leave to appeal to that
court from the decision of Judge Knoblanche in the
District Court to whom the applicant had applied for

a stay on the ground that his prosecution would amount

to an abuse of process. The abuse of process which

he alleges arises from the circumstances of his

apprehension prior to his extradition to Australia.

Those circumstances were also relied on in earlier

proceedings when, after the applicant's extradition

to Australia, he sought from the Supreme Court of

New South Wales orders, inter alia, that there be a

prohibition on the continuance of proceedings as an

abuse of process. At that time, committal proceedings

were pending but no trial was pending.

In the course of his judgment in that case,

Mr Justice Smart said, amongst other things:

"The Australian Courts have jurisdiction over

Mr Levinge -

for that was the name which the applicant had then

adopted -

as he is physically within the jurisdiction.

The grant of relief by way of a declaration,	stay or order is discretionary ..... The evidence
does not establish any wrongful conduct on the
part of the Australian Authorities or that they
willingly adopted any wrongful conduct on the
part of the US or Mexican authorities."

And later:

I attach great importance to ensuring that the

Australian Police do not enjoy the fruits of

wrongful conduct. Having regard to the absence

of any evidence of any wrongful conduct on their

part or their adoption or acquiescence in such
conduct, the full consideration of the matter
by the United States Courts, the opportunity

Mr Levinge had to place all relevant matters

C2T20/l/RB	38	2/3/90
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before those courts, their possession of

fuller materials and fuller knowledge of

United States/Mexican procedures, the difficulties

and the whole of the circumstances of this case	of this Court becoming so seized of these matters exercise its discretion in Mr Levinge's favour
and grant the relief sought.

Mr Justice Smart therefore dismissed the

application and His Honour's order was upheld on
appeal. In due course, upon committal, the applicant

sought a stay of his trial. Judge Knoblanche heard

evidence and came to the conclusion that the

circumstances did not warrant an order staying the

trial as an abuse of the process of the District

Court. That question was not identical with the question which was decided in the first case but there

is such a similarity between that question and the

question which was canvassed and decided in the first
case that it is not seriously to be thought that the

Court of Criminal Appeal would, or should, overturn

the decision of Judge Knoblanche which accords with

that first decision. Even assuming that the grounds

assigned by the Court of Criminal Appeal for refusing
leave are open to criticism, we do not think it

appropriate to grant special leave in order to consider

whether the findings of Judge Knoblanche might be

overturned if the matter were sent back to the court
of Criminal Appeal for reconsideration of the leave

application to that Court.

Behind the facts in this case there lies a

difficult question of the jurisdiction or the propriety

of exercising the jurisdiction of a criminal court

over a person who has been extradited here by a

sending State after the apprehension of that person by

improper means. On that question we express no opinion.

However, special leave shall be refused.

AT 4.26 PM THE MATTER WAS ADJOURNED SINE DIE

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