Mokbel v Attorney-General for the Commonwealth of Australia & Anor

[2007] HCATrans 716

[2007] HCATrans 716

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2007

B e t w e e n -

ANTONIOS SAJIH MOKBEL

Applicant

and

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

THE MINISTER FOR JUSTICE AND CUSTOMS

Second Respondent

Application for expedition

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 NOVEMBER 2007, AT 9.30 AM

Copyright in the High Court of Australia

MR M. BAGARIC:   Your Honour, I appear on behalf of the applicant.  (instructed by Mirko Bagaric Lawyers)

MR P.J. HANKS, QC:   Your Honour, I appear with MR D.J. BATT for the respondents.  (instructed by Australian Government Solicitor)

HER HONOUR:   Yes.

MR HANKS:   It is our summons, your Honour. 

HER HONOUR:   Yes.

MR HANKS:   Can I just explain to your Honour what it is that we seek.  The summons sets out particular directions that we ask the Court to make.

HER HONOUR:   Yes.  This is all directed to having this matter placed in the special leave list on December 14?

MR HANKS:   That is correct, your Honour, and we have communicated with the applicant by correspondence to vary to some extent the directions that we seek from the Court.  The variation would be that ‑ ‑ ‑

HER HONOUR:   Does that mean they are not opposed at this stage, what you are about to tell me?

MR BAGARIC:   We are opposed to that, your Honour.

HER HONOUR:   Very well.  Just let me get this clear.  You have had discussions about the directions but you are opposed to the matter being listed in the special leave list on 14 December, are you?

MR BAGARIC:   Yes, your Honour, I am opposed to this matter being expedited.

HER HONOUR:   Yes, very well.

MR HANKS:   We will explain why we think it should be expedited.  Perhaps in order to take your Honour through that explanation I would need to hand up to your Honour a copy of a transcript before Justice North when the present applicant applied for the expedition of the appeal to a Full Court and that was on 10 October.  We have supplied our friend with a copy of that transcript.  Your Honour will see that on that occasion the applicant was represented by I think it is Dr Freckelton and in support of the application for expedition, as your Honour can see from about line 11 that was the application, Mr Freckelton said at line 28 that:

the Supreme Court in Athens had acceded to the application for an adjournment by Mr Mokbel, with the result that they will reconvene on 4 December.

The judge asked our learned friend, Dr Freckelton:

What was the basis upon which the court in Greece adjourned?

Dr Freckelton asked me to answer that question, which I did:

it was on the basis that this appeal was pending here in Australia and would be decided as a matter of some urgency, it being put to the court –

that is a Greek court –

that the validity of the request made for the return of the present appellant to Australia was relevant to the matters that the Greek Supreme Court had to decide.  Therefore the court granted an adjournment to allow the validity to be determined here.

If your Honour turns the page to about line 17 on the following page, Dr Freckelton said:

What my learned friend has said to you wholly accords with my instructions, your Honour.

Then later, after some discussion, on page 6 it dealt with another question from his Honour Justice North and I said at line 38:

Greek courts have been apprised of the existence of these proceedings and, in particular, of this appeal and my instructions are that . . . the existence of this appeal was not a principal ground for the adjournment, it was the only ground on which the Court of Appeal adjourned the proceedings, having been told by Mr Mokbel’s counsel that he would seek to adjourn the proceedings until the Federal Court, or perhaps beyond that, handed down its final determination on the question of the lawfulness or the validity of the request.

That was the submission which I made to the judge and on the following page at line 11 or 12 Dr Freckelton said:

I have nothing to add.

So it was common ground before his Honour Justice North, and that was two days before the Full Court was convened.  Two days before the Full Court heard the appeal and dismissed the appeal it was common ground that the proceedings before the Greek courts had been adjourned pending the determination of the challenge in Australia to the validity of the request. 

Could I explain to your Honour that the request was made on 21 June 2007, I believe.  The request led to a proceeding before the Athens Court of Appeals as the primary court and there were matters raised before the Athens Court of Appeals as to why the Republic should not accede to the request.  Those matters were rejected and the Athens Court of Appeal ruled that the request should be acceded to and Mr Mokbel should be returned to Australia. 

An appeal was then lodged.  An appeal lies from that court to the Supreme Court of Greece which is the ultimate Court of Appeal.  That is a matter which is attested to by the affidavit of Mr Vlachos and that affidavit is in turn an exhibit, JG1, to the affidavit of Mr Giacco, which is filed in this Court.  The sequence of events that has occurred within the Greek judicial system is dealt with in that affidavit and Mr Vlachos said in that affidavit that “If Mr Mokbel does not succeed” in the Supreme Court ‑ ‑ ‑

HER HONOUR:   Yes, I see that at paragraph 11.

MR HANKS:   That is right.  That is so, your Honour, and paragraph 17 is also relevant.  That is essentially, as far as Mr Vlachos understands, the last stop.  The proceedings in the Court of Appeal had been listed for 9 October when the matter came before Justice North here to expedite the appeal from Justice Gordon to the Full Court.  Justice North was informed that the Athens Court of Appeal had adjourned its hearing because it understood that there was an appeal pending here in Australia and, as your Honour can see, it was common ground that the ground on which that adjournment was made was to allow that process to be worked through in Australia.

Now we are at the point where the applicant has challenged the validity of the request, failed before the primary judge, failed before the Full Court, now seeks special leave.  We would say that in the circumstances that we have outlined to you your Honour should accept that the return of Mr Mokbel to Australia in response to the request will not occur until this proceeding – if I can call it a proceeding, it is merely an application for special leave – is determined and if it is successful, until any consequential appeal is determined by the Court.

HER HONOUR:   What is contemplated will happen in Greece on 4 December?

MR HANKS:   On 4 December we would assume that the Court of Appeal would be told that the proceedings in Australia have not yet concluded and the Court of Appeal, we would assume, although it is obviously in the hands of that court, would further adjourn the hearing of the appeal.  That is the attitude that has been taken up to this point and we can only assume that the Court of Appeal would persist in that attitude.

HER HONOUR:   If the Court of Appeal acts consistently with its past actions, it is a fair inference, I suppose, or assumption perhaps I should say ‑ ‑ ‑

MR HANKS:   We think so, your Honour.

HER HONOUR:   - - - that it would be possible that it would grant a further adjournment.

MR HANKS:   There would be a rational basis for that as well because if it transpired that the request made on 21 June was not a valid request, then that is likely to be perceived by the Greek authorities as removing any obligation on them under the treaty to consider the return to Australia of Mr Mokbel.  So there will be a rational basis for deferring further consideration.  It follows therefore that even if this matter were to be listed on 14 December, there will be some further adjournment of the proceedings in Greece, but if this Court were able to list the special leave application for 14 December, then the Greek court could be informed of that on 4 December and make arrangements accordingly. 

The alternative would be, of course, to wait until something like 8 February next year or even later for the hearing of the special leave application.  That would leave, in our submission, proceedings before the Greek Court of Appeal perhaps in limbo, is an inappropriate metaphor but it is close to the problem that we are concerned about.  It is undesirable, we say, that there be any uncertainty about the timing of the disposition of the challenge leading to delay in consideration by the Greek Court of Appeal as to whether Mr Mokbel should be returned and the reasons for that are, his return is sought by reference to serious crimes, including one crime of which he has been convicted and sentenced, he having absconded during the trial in relation to that crime.

Your Honour would see the detail of the conviction and the additional offences for which his return is sought set out, for example, in the judgment of Justice Heerey.  That judgment will be one of the documents filed with the application for special leave.  I think it is the last document, your Honour.  Your Honour has that.

HER HONOUR:   Yes, I have that.

MR HANKS:   Paragraph [2] of the judgment of Justice Heerey, the judgment adopted by the other members of the court.  So there is the reference first to his conviction:

sentenced in absentia to 12 years imprisonment with a non‑parole period of nine years.  Secondly, surrender was sought in relation to 20 offences of which he had been accused but not convicted.

Two of those offences are murder.  Your Honour can see that there are other serious offences for which his return is sought.  Taking into account the nature of the request, the fact that it was made five months ago, the fact that the Athens Court of Appeal, the primary court that dealt with the request, has already found against Mr Mokbel, all that he has now is this final appeal in Greece.  Taking into account that his challenge to the validity of the request has twice been rejected both by the primary judge and by the Full Court in this country, those are matters we say that support our application to have the special leave application dealt with promptly. 

We would also urge on your Honour the principle that as a matter of comity it will be desirable for this Court to fix as soon as possible a date for the special leave application so that the Greek court can be told on 4 December of the fact that there is a specific date and can set its course accordingly. 

We should also mention this, your Honour, that the particular issue, as we understand it, the applicant seeks to agitate on a special leave application is a discrete and short point and it goes to the construction of section 40 of the Extradition Act.  That is the section which provides that a request by Australia for the extradition to Australia of a person is only to be made by the Attorney‑General.  So the question just goes to the construction of that and to its interaction with two provisions in the Acts Interpretation Act, primarily section 19A which was the provision relied on by the primary judge and by the Full Court or, alternatively, section 19.  So on the special leave application it will only be the relationship between section 40 and section 19A, as we understand it. 

It might get a little bit more complicated if there were an appeal because in that context we might put on a notice of contention bringing in section 19.  It is a short point.  We do not think that it has any great complexity to it.  The arguments have been rehearsed twice in the past two and a half months, or two months really.  The matter was argued before Justice Gordon on 27 September, so that is less than two months ago.  It was argued again before the Full Court on 12 October.  We do not apprehend that there should be any complexity or difficulty in preparing a summary of argument of the kind that would be required to support the application for special leave.

One final point, your Honour, although we understand that the applicant opposes our application for expedition, our application for expedition is entirely consistent with the conduct of this matter and the conduct of the parties in the Federal Court.  The hearing before the primary judge was brought on as a matter of urgency.  The hearing before the Full Court was also brought on as a matter of urgency effectively on the joint application of the applicant and the respondents.

Our application for expedition has been made to this Court as promptly as was reasonably practicable having in mind our unsuccessful attempts to persuade the applicant to make the application.  We thought it was appropriate that the application should come from the applicant, but as your Honour can see from the affidavits of Mr Giacco that we have filed, that has not proved possible.

Yesterday, my instructing solicitors wrote to Mr Bagaric, who is acting for the applicant, and I believe that a copy of that letter was forwarded to the Registry of the Court.  Relevantly the letter included a draft minute of proposed orders.  If your Honour does not have a copy of that draft minute, we can provide your Honour with one.

HER HONOUR:   Yes, I have that letter.  I will just take a moment to look at it again.

MR HANKS:   Yes, your Honour.

HER HONOUR:   Yes.

MR HANKS:   A couple of small variations from the orders sought in the summons, particularly order 2 had in error nominated 26 November as the date for the filing of the summary of argument.

HER HONOUR:   It should be the 29th.

MR HANKS:   Yes, we had intended it to be 29.  We have included a reference to the draft notice of appeal being filed on the same date.  We should have done that.  That is obviously important.  We have nominated a date for the filing and service of the application book, the same date as the reply.

HER HONOUR:   Yes, 12 December.

MR HANKS:   There should be perhaps a sixth order which would be that the costs of this application be costs in the special leave application.  Subject to that addition, your Honour, those are the respondents’ submissions on the summons.

HER HONOUR:   Yes, thank you, Mr Hanks.  Yes, Mr Bagaric.

MR BAGARIC:   Your Honour, every litigant has the right to present their case in the best possible light.  If this matter proceeds on 14 December, Mr Mokbel will not have that opportunity.  Litigants do have procedural rights.  Those procedural rights include having time and resources to actually prepare their case.  There are 21 days now between now and 14 December.  That does not give Mr Mokbel and his lawyer – and I repeat, lawyer – to actually prepare for this matter.  I take significant issue with the submission here that this is an easy matter and does not require any preparation and it is irrelevant that this matter has been litigated in the Federal Court and the Full Federal Court. 

We lost in that case.  Going to the High Court is not a cut‑and‑paste job.  This is my client’s last avenue of appeal.  He has a significant interest at stake here.  That is his liberty.  The difference between winning and losing in this case for my client could conceivably be between spending 25 years in prison to actually spending very little more time in prison.  This matter is significantly complicated from his perspective and from his lawyer’s perspective by the fact that my client is not only in custody but he is in custody in Greece.  That makes it extremely difficult to, firstly, communicate with my client, secondly, it makes it very difficult to get any instructions from my client. 

For example, my client is not even aware that these proceedings are on foot today and the reason he is not aware of that is because it was impossible for me to communicate to him over the past two days.  I endeavoured to contact him last night.  I left a message with his partner.  She did not know where he was.  She was of the view that he was perhaps in the process of being moved from one gaol to another gaol.  In those circumstances, given those pragmatic difficulties, it is very difficult in order for us to get a wriggle on.

Those difficulties are compounded enormously by the fact that, according to my instructions, my client is impecunious.  He has no money.  Given that, my client should be given the normal, not extra, my client should be given the normal time.

HER HONOUR:   Well, the normal time for your client’s draft notice of appeal would be 28 days.

MR BAGARIC:   Yes, that is correct.

HER HONOUR:   What is proposed in the minutes is 22 days.

MR BAGARIC:   Yes, so it is leaving six valuable days off, but it is not only the days there.  There are also three days, from my recollection, that are proposed in terms of snipping time off in terms of our response.  The time to prepare the appeal books is normally 21 days after all the submissions have been put in and that is an exhausting task.  Mr Mokbel does not have significant resources.  He has one person undertaking this matter.  The process of preparing appeal books will take at least one day, perhaps two days.  That is valuable time taken away from preparing for his argument.

In my submission, your Honour, a litigant’s right to prepare their case in its most favourable light should not be trammelled lightly.  That is an important right.  It is not recognised in Australia, but it is in fact even recognised in some international conventions.  Article 14 of the International Covenant on Civil and Political Rights recognises that litigants need to have the time and resources to prepare properly.  Mr Mokbel should be accorded that time.  That Convention obviously does not play directly into Australian law, but the reasoning does.

I also take issue with the fact that the mere fact that previously there was an application for expedition, and it was in fact our application of the Federal Court and a Full Federal Court, in some way entails that that should happen in the High Court as well.  Significantly different considerations apply.  From the time an application is filed in the Federal Court to the time the matter is determined often takes one year or more.  The special leave application process is very nimble in any event.  It takes about 77 days from the time an application is filed to when all the material needs to be submitted, less than three months.  That is a very, very quick process for a time‑stretched, resource‑stretched lawyer and litigant.

In addition to that, this is my client’s last avenue of appeal.  We took the view very early on – and I have communicated this view to my learned friend – this matter was always destined for the High Court.  The reason it was destined for the High Court is because my client has very strong interests at stake.  It was always my view as well that the matter did raise important issues of law and I viewed it as being untenable that if we had have succeeded at the Federal Court or the Full Federal Court, that in fact the respondents would not litigate this matter to the High Court.  This is the forum that counts and because this is a forum that counts, we need to do it properly.  We cannot be hurried by some remote contrary interests that the respondents contend does apply in this particular case.

HER HONOUR:   One of the issues has been comity between the courts and the fact that the Greek Supreme Court is waiting to see what transpires in Australia.

MR BAGARIC:   Your Honour, they may or may not be, but one of the fundamental points in relation to this matter is that there is no evidence that on 4 December when this matter is due to go to the Greek Supreme Court that my client will seek an adjournment.  My client has sought an adjournment once on the basis that the matter was being litigated in Australia.  Once does not equal a pattern.  It may very well be the case, and I certainly do not have any instructions to the contrary, that my client desires the matter to proceed in the Greek court on 4 December. 

The reason he may wish that is because his lawyers may have in fact fully prepared for that matter over there.  If that is the case that the matter actually does proceed on 4 December and my client is successful, these proceedings will be abandoned.  If they are abandoned, my client then does not have to try to cobble up resources to provide for lawyers here.  At this point in time my client is not in a position where I can organise for counsel to be briefed.  If the timeline proposed by my learned friend is heeded to, that would mean that the outline of arguments that would be submitted would not have any input by counsel who will be arguing the matter at the special leave application.

Could I just also repeat, this is a complex case.  It is a difficult issue and it is not confined to section 19A of the Acts Interpretation Act.  The applicants and the respondents have spent significant time and energy researching, preparing for this complex novel point.  It involves considerations of administrative law, constitutional law, international law, statutory interpretation and it is a difficult issue and we need to nail it in this case and we cannot do so in 21 days.  If the respondents’ application is heeded to, Mr Mokbel will be denied the right to actually prepare his case in its best possible light.  Every litigant in Australia is entitled to that, particularly when this is his last chance. 

I accept that in relation to this matter Mr Mokbel does take a risk.  If on 4 December – and I do say if – he does apply for an adjournment, and it may very well be on the basis that this is still proceeding in the High Court and we do not have any fixed date for the special leave application, the Greek court in those circumstances may actually decline to give him an adjournment on the basis that they have given it to him once, the matter failed, and it may regard him as actually playing the system.  That is a risk that he takes. 

No doubt, if the matter does proceed on 4 December and Mr Mokbel does not get up, my learned friends, I assume, will actually report to the

Greek prosecuting authorities that are prosecuting this matter on behalf of the respondents that there was a hearing at the High Court and at that High Court Mr Mokbel declined an expedition request.  They can make their own inferences in that regard in terms of what they should do.  It is a very, very difficult strategic decision. 

As Mr Mokbel’s lawyer, in terms of what ought to be done here, whether or not we do try to get a wriggle on or whether or not we do try to prepare properly, the strategic decision, which has some risks for my client which he is aware of, that we have made is that it is more important to do it properly rather than hurriedly.  There is a direct correlation between the time and resources that a litigant takes to prepare for their case and the outcome of the case.  That cannot be denied.  My client is not trying to prolong this matter.  He has been pushing this matter to get on as quickly as possible to the only forum that ultimately could have counted in this matter.

Now that my client is in this matter, he simply wants to utilise the normal court processes and timelines which – which he was advised about at the outset – would apply in this case to properly prepare his case.  He is entitled to do that particularly in these circumstances where he has no resources.  He needs to have every spare hour, every spare minute to prepare his case. 

It is very easy from the other side when you have virtually inexhaustible, or certainly plentiful, resources to charge up a number of QCs, no end of solicitors and support staff to actually help with the research and to actually prepare all the documentation.  It puts overwhelming and almost insurmountable pressure on his legal team, ie, of one to actually do that.  In my circumstances, it would not be reasonable, it would not be just for the Court to order expedition in this very, very important case.

HER HONOUR:   Yes, thank you very much.  Yes, Mr Hanks.

MR HANKS:   We understand our friend to say that he is unable to get instructions from Mr Mokbel in relation to our summons and yet he vigorously opposes the expedition.  There is a possible inconsistency in the position that is adopted there.  As your Honour pointed out, it would, according to the rules, be incumbent on the applicant to file and serve the summary of argument on 5 December.  The timetable that we have proposed has taken six days off that.

This is a matter where we repeat the issues that can be raised on the application for special leave are confined.  They cannot go beyond the question of the construction of the Extradition Act, of the Acts Interpretation Act.  In our submission, there is no complexity involved in the preparation of the matter beyond that which has been invested in the preparation of the proceedings below.  In that context we note that the present applicant was able to prepare and present a case to the Full Court within seven days of the primary judgment by Justice Gordon.  We are, on behalf of the respondents, willing and able to prepare any application book that is required pursuant to the directions that we seek.  We will undertake to do that on behalf of the applicant in order to allow his representative to focus on preparation for the hearing itself. 

It has been suggested this morning that Mr Mokbel might elect to proceed in the Greek Court of Appeals on 4 December.  We submit that your Honour should not accept that as something that is conceivable, given the affidavit of Mr Vlachos to the effect that once the Court of Appeals makes its decision, Mr Mokbel can expect to be returned almost immediately to Australia.  Once he is returned to Australia he will be here.  He will be apprehended.  He will be able to be charged and the validity or otherwise of a request will become an academic issue, that is, the matter sought to be agitated in the special leave application.

HER HONOUR:   I must say, I am inclined to give Mr Bagaric a few more days in terms of the second order because he has indicated his difficulties to the Court and it seems to me it would be appropriate in the light of his submissions to direct that the applicant’s summary of argument and draft notice of appeal be filed and served on or before 3 December rather than 29 November.  That then means that in terms of the usual directions that could be made, which Mr Bagaric pointed to, it is only three days short of the 28 days that would normally be allowed.  I am minded to give as much as time as is possible if this matter is to be listed on the 14th to Mr Bagaric and his client in terms of the preparation.

That puts possibly a burden on you, but it seems to me you are the party asking for the expedition and that, I suppose, is time taken away from you in terms of your ability to prepare but it seems to me that that is an appropriate way to strike the balance.

MR HANKS:   I could not say that it would impose any hardship on us, your Honour.  I could not say that.

HER HONOUR:   No.  Then I will direct that you file and serve the application book because once again Mr Bagaric made the point that it does take a day or two away from the preparation of argument and it seems to me appropriate to impose that burden on you rather than on Mr Bagaric and his client, Mr Mokbel.  It also seems to me it would be appropriate perhaps to reserve the costs of this application today in the context of what Mr Bagaric has had to say about his difficulties. 

MR HANKS:   Your Honour, there is one matter that I need to raise about the directions.  If we are to do the application book, we need to get the reply in time to make it possible for us to file and serve the application book if it is to be filed on the same day.

HER HONOUR:   Yes, perhaps I should bring that back by one day.  It is a fairly simple application book, I would have thought. 

MR HANKS:   It will be but we cannot do it without the reply.  If it is given to us at 4.00 pm, we cannot file an application book by that time.

HER HONOUR:   No, I must say that thought crossed my mind also.  Should I make it by noon on 12 December or the day before?  Let me just check.  It could be by the 11th.

MR HANKS:   Yes, your Honour.

HER HONOUR:   I have been reminded by the Deputy Registrar that if the applicant could not make that 11 December date in terms of a reply and wanted an extra day or two, there could be an undertaking to file seven copies of the reply in time for that to be available.  Very well.

MR HANKS:   Thank you, your Honour.

HER HONOUR:   Having heard the arguments in relation to this summons seeking an expedited hearing for the applicant’s application for special leave I make orders and directions as follows:

1.The applicant’s application for special leave to appeal be heard by the Court on 14 December 2007.

2.The applicant’s summary of argument and draft notice of appeal be filed and served on or before 3 December 2007.

3.The respondents’ summary of argument be filed and served on or before 7 December 2007.

4.The applicant file and serve any reply on or before 11 December 2007.

5.The respondents file and serve an application book on or before 12 December 2007.

6.Costs of this application be reserved.

Nothing further?

MR HANKS:   If your Honour pleases, no, there is not.

HER HONOUR:   Adjourn the Court.

AT 10.09 AM THE MATTER WAS CONCLUDED