Mokbel v Attorney-General (Cth)

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FEDERAL COURT OF AUSTRALIA

Mokbel v Attorney-General for the Commonwealth of Australia
[2007] FCA 1536

EXTRADITION – validity of request for extradition to Australia issued by the Minister for Justice and Customs – whether s 40 of the Extradition Act 1988 (Cth) evinces a “contrary intention” for the purpose of s 19A of the Acts Interpretation Act 1901 (Cth) – source of power to request the extradition of an Australian citizen from a foreign State – operation of ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) in relation to the exercise of executive power by two ministers.

INTERNATIONAL LAW - whether an Australian Court can comment on or intervene in the manner in which the Greek Ministry of Justice dealt with communications from an Australian diplomat – principle of non-adjudication.

ADMINISTRATIVE LAW – whether the Minister acted in bad faith, for an improper purpose or in breach of the requirements of natural justice.

Acts Interpretation Act 1901 (Cth) ss 19 and 19A
Evidence Act 1995 (Cth) ss 143(1)(c), 150, 153
Extradition (Foreign States) Act 1966 (Cth) s 21
Extradition Act 1988 (Cth) ss 3, 5, 22(2), 23, 40, 41
Judiciary Act 1903 (Cth) s 39B
Constitution ss 61, 62, 64, 65

Extradition (Hellenic Republic) Regulations 1991 (Cth)

Explanatory Memorandum, Acts Interpretation Amendment Bill 1998 (Cth)
Replacement Explanatory Memorandum, Extradition Bill 1987 (Cth)

Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 cited, considered and applied
Attorney-General v Foster (1999) 84 FCR 582 cited and applied
Bartonv Commonwealth (1974) 131 CLR 477 cited and applied
Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 cited and applied
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 cited
Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 cited

Foster v Attorney-General (1998) 158 ALR 394 considered

Gamogab v Akiba (2007) 159 FCR 578 cited
McCrea v Minister for Customs and Justice (2004) 212 ALR 297 cited
Oates v Attorney-General (Cth) (2003) 214 CLR 496 cited and applied
O'Reilly v Commissioners of the State Bank of Victoria (1983) 153 CLR 1 cited
R v Burgess; ex parte Henry (1936) 55 CLR 608 cited
R v Secretary of State for the Home Department, ex parte Doody [1993] QB 157 cited
R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 cited
R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 cited
R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 cited
Re Patterson; ex parte Taylor (2001) 207 CLR 391 cited and considered
Re Reference under Ombudsman Act 1976 (1979) 2 ALD 86 cited
Republic of Argentina v Mellino [1987] 1 SCR 536 cited
Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 cited
Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.) cited

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Details
Case
[2007] FCA 1536
Decision Date

CaseChat Overview and Summary

The case of Mokbel v Attorney-General (Cth) involved the Applicant challenging certain communications made during the extradition proceedings in Greece. The Applicant alleged that these communications from Australia, via its diplomatic representative in Athens, to the Athens Court of Appeals, were made in bad faith and intended to influence the proceedings. The Applicant sought relief based on these claims, arguing they were contrary to fundamental principles of public international law.

The legal issues before the court included whether the communications from Australia to the Greek court were improper and influenced the outcome of the extradition proceedings. The court had to determine the nature of the communications, their purpose, and whether they constituted an interference in the judicial process of another sovereign nation. Additionally, the court needed to assess the Applicant's claims against the established principles of public international law and the evidence presented.

The court found that the Applicant's claims were not supported by the facts. The communications in question were routine exchanges regarding the submission of legal documents and did not constitute improper influence. The First Email from the Australian Embassy was a request for the Greek court to consider additional evidence and delay their decision until that evidence was available. The First Supplementary Email was a forwarding of this communication to the President of the Athens Court of Appeals, indicating that it was part of the official process. The court concluded that there was no evidence of bad faith or improper influence, and the Applicant had not substantiated his claims.

The application was dismissed, and the Applicant was ordered to pay the Respondents' costs of the application, including reserved costs. This decision underscores the importance of adhering to diplomatic and judicial protocols when engaging in international legal processes.

Orders

Orders of the court

1. The application is dismissed.

2. The Applicant is to pay the Respondents’ costs of the application, including reserved costs.

Background

Background to the litigation

The Applicant’s contention in relation to this ground is not supported by the facts and is contrary to fundamental principles of public international law.Contention not supported by the facts It is necessary to set out in chronological order the facts as disclosed by the evidence tendered before the Court. The Request was dated 21 June 2007. On 24 July 2007, the Request was heard by the Athens Court of Appeals. Argument concluded on 24 July 2007. The Athens Court of Appeals reserved its decision until 10.00 am on 26 July 2007. The Applicant complains about two communications. He submitted that each communication:(1)constituted a communication from Australia, through its diplomatic representative in Athens, directly to the Athens Court of Appeals;(2)was made in bad faith with the intention of influencing the outcome of proceedings in Greece.The evidence did not support these conclusions. The first communication about which the Applicant complains is an email from the Deputy Head of Mission, Australian Embassy, Athens to “Ms Koletta” whose email address bears the domain name “@justice.gov.gr” (“the First Email”). Counsel for the Respondents submitted that it is open to me to assume that Ms Koletta was part of the Justice Department in Greece. The terms of the First Email are important. It stated:“…Sent: Tuesday, July 24, 2007 12:01 PMSubject: FW: Mokbel – Supplementary Affidavit from Victoria [SEC=CASEWORK-IN-CONFIDENCE][SEC=IN-CONFIDENCE:LEGAL]Dear Ms KolettaAs per our discussion. Please find attached advice from Australian Attorney-General’s concerning dispatch of a supplementary affidavit – which will be forwarded through the diplomatic channel as soon as it is received – which the Council of Judges may wish to consider in their determination of the exercise of their discretion to extradite Mr Mokbel for offences included in the original Extradition Request which may be considered to have been committed in part in Greece.The affidavit apparently sets out evidence which provides with greater certainty the dates when Mr Mokbel was still in Australia – later than originally thought.I would be grateful if you brief the Public Prosecutor to petition the Council of Judges for sufficient time for them to receive this affidavit through the diplomatic channel – and their deferral of consideration of this matter until the affidavit is available. The affidavit is set to arrive at the Embassy on 26 July.Thank you.…”(Emphasis added.) The next documentary record relevant to the First Email is an email purportedly sent by a person described as the “Deputy Public Prosecutor of the Court of Appeals from The Public Prosecutor of the Athens Court of Appeals” to “Mr. President of the Athens Court of Appeals” on 24 July 2007 entitled “Forwarding of documents by the Australian Embassy regarding the case of extradition of the Australian citizen {SURNAME} MOKBEL {NAME} ANTONIOS SAJIH” (“the First Supplementary Email”). The First Supplementary Email read:“REF.: Our document A.P. EKD 1692 FE 5829 dated 12-07-2007Following our abovementioned relevant document, we are conveying to you the e-mail dated 24-07-2007 which was forwarded to our Service from the Ministry of Justice and we request your actions.”(Emphasis added).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GORDON J
The Applicant has not made good the bases for his claims to relief.CONCLUSION AND ORDERS The application will be dismissed and the Applicant will pay the Respondents’ costs of the application, including reserved costs.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.