Mokbel v The Queen and Anor
[2013] HCATrans 321
[2013] HCATrans 321
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M64 of 2013
B e t w e e n -
ANTONIOS SAJIH MOKBEL
Applicant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Second Respondent
Office of the Registry
Melbourne No M90 of 2013
B e t w e e n -
ANTONIOS SAJIH MOKBEL
Applicant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Second Respondent
Applications for special leave to appeal
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 10.33 AM
Copyright in the High Court of Australia
____________________
MR R. MERKEL, QC: If the Court pleases, in the first matter I appear with my learned friends, MR P.J. DOYLE and MS E. LEVINE, for the applicant. In the second matter I appear with my learned friends, MR M.J. GUMBLETON and MR P.J. DOYLE, your Honour. (instructed by Stephen Andrianakis & Associates)
MR T. GYORFFY, SC: If it please the Court, I appear with my learned friend, MS F.L. DALZIEL, for the first respondent, the State of Victoria. While I am on my feet, could I ask the indulgence of the Court to change the order of presentation for the respondents so that the learned Solicitor‑General goes first and also while I am on my feet, I ask that Ms Dalziel be delivering the arguments on behalf of the State of Victoria on sentencing. (instructed by Office of Public Prosecutions (Vic))
CRENNAN J: Yes, thank you, Mr Gyorffy.
MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with MR G.A. HILL for the Attorney‑General for the Commonwealth in the first matter. (instructed by Ashurst Australia)
CRENNAN J: Yes, Mr Merkel.
MR MERKEL: Is the Court hearing both matters together and I will do both convictions and ‑ ‑ ‑
CRENNAN J: Well, have you sorted out the order? It may be convenient to hear from you in relation to both matters, Mr Merkel.
MR MERKEL: If your Honour pleases. Can I first deal with the sentencing appeal, your Honours, and go straight to application book pages 62 to 63 which set out Article 34 and rule 39 which are central to the case that is being put by the applicant. At the bottom of page 62, the undertaking of the contracting parties, which we say is infringed in the present case, is:
not to hinder in any way the effective exercise of this right –
of the person claiming to be the victim of a violation of the Convention to bring an application to the court. Rule 39 is set out at the top of page 63. That allows for special measures but on a far wider basis than just an infringement of Article 34 but critically this case is about the hindrance of the effective exercise of the applicant’s right to protection of the two violations in his application, being the right to life and the right against cruel and unusual punishment. The chronology in the present case is ‑ ‑ ‑
KIEFEL J: What was the substance of the case for interim measures? How was it said that he would be exposed to ‑ ‑ ‑
MR MERKEL: It was set out in the application in some detail, which is not before the Court, your Honour, but it was essentially said threats to his life on his return to Australia by being in solitary confinement and exposed to risks in Australia in the prison system. The Australian Government’s assessment of that application is that it was likely to be admissible and the Australian Government was fearful of a ruling by the court on the application for interim measures by, at the earliest, 21 May, and as a result of that there was, what was put below, a deliberate attempt by Australia and Greece to circumvent the court’s ruling on the matter.
KIEFEL J: Was there also an application brought in the Supreme Court of Greece to challenge the extradition?
MR MERKEL: Yes, your Honour. The process followed was that the extradition proceedings were finalised in Greece after the court had dismissed his application to prevent extradition which did not involve charter rights.
KIEFEL J: Presumably, if there were any impropriety alleged concerning the involvement of Greece and Australia about extradition, they would have been raised in the Supreme Court of Greece.
MR MERKEL: The impropriety was not about extradition – the Convention rights are totally separate from the extradition proceedings.
KIEFEL J: You say that the question about circumvention did not occur until later?
MR MERKEL: Did not arise.
KIEFEL J: But there was no impropriety, there was no wrong in relation to the extradition proceedings taken at that point?
MR MERKEL: Correct. That came to an end with the Greek Minister’s order for extradition on 7 May which was the final domestic step that then gave the applicant a right to approach the European Court which he had done in April.
KIEFEL J: I see.
MR MERKEL: From 7 May, a set of events had triggered, critically between 13 and 16 May, which the court has never considered, which gave rise to what we say is the circumvention. Those events in summary, your Honours, were that the order of the Minister was served on Mr Mokbel in prison on 12 May. He then sought to get his solicitors to take urgent steps. The telephones were said to be down and the prison officers were then saying “We are not here to assist you”. On 12 and 13 May, his Greek solicitors served both Australia and Greece, the relevant authorities, with the application. In the normal course, a Convention State is not served with the application. It is notified of it formally by the court ‑ ‑ ‑
KIEFEL J: Yes.
MR MERKEL: ‑ ‑ ‑ after the court has decided what to do but because there was a fear, which was well founded, that Mr Mokbel will be extradited before his application could be considered by the court, his solicitor put, or his attorneys put both Australia and Greece on notice of the Article 34 application, the fact it was based on Articles 2 and 3 - the right to life and the right against cruel and unusual punishment, and made it clear that his extradition would irreversibly render nugatory the rights he is seeking to protect. Justice Whelan found that Australia was aware of Greek’s awareness and there are two steps under the Moti principle: was Greece’s conduct ‑ ‑ ‑
KIEFEL J: This case is far removed from Moti.
MR MERKEL: Well, we say, with respect, your Honours, the case that we put has never actually been dealt with by the court and that is one of deliberate prevention ‑ ‑ ‑
KIEFEL J: There could be a reason for that.
MR MERKEL: Well, your Honour, the reason for it, in our respectful submission, is they treated counsel for Mr Mokbel as making a concession which was never made, which meant it never dealt with the case he put, which is that there was a deliberate circumvention of his right to approach the court by reference to his removal and it was said that was conceded not to be a case being put, when it was the very case put. So their Honours never found, both at first instance or on appeal, the facts necessary to decide whether Article 34 had been contravened deliberately and in an endeavour to prevent the court from dealing with the matter.
KIEFEL J: Putting aside interim measures which may have been overcome by the extradition, is the Court of Human Rights able to continue to hear a matter in relation to an infringement of Charter rights?
MR MERKEL: It is able to continue to hear it but its jurisprudence makes a number of points clear - and I can take your Honours to the passages - but the points that the jurisprudence makes clear are first of all that where a person makes a request, or the court grants interim measures, and a State party is aware of that in respect of Article 2 and 3 rights, and that person is either extradited or deported, that irreversibly reduces the protection the court can give them because they are exposed to the very risk that they are seeking the court’s protection from.
CRENNAN J: Well, it seems to be suggested in the papers that interim measures are regularly made within a very short timeframe, after an initial application.
MR MERKEL: Your Honour, that was based upon the court’s statistical survey that if the court had regard to the evidence, what Australia had found out and feared, which was directly related to this case, is that because time only started running from 7 May and the court’s jurisdiction would only be invoked or invocable from the end of the domestic procedure which was the Minister’s deportation decision, the earliest a decision could possibly be made in the usual course as far as they are aware would be 21 May, then the Australian authorities set about trying to ensure his removal from Greece together with the Greece authorities before 21 May in circumstances which were designed to prevent the court from dealing with the matter. They were both on notice from 13 May, then you find this shut down and this removal between 13 and 16 May.
KIEFEL J: But do we take it that Mr Mokbel was only interested in an application for interim measures, that there was no final relief, declaratory or otherwise, from the Court of Human Rights that he was interested in obtaining ‑ ‑ ‑
MR MERKEL: No, his application, your Honour, was for an order ultimately to prevent his extradition based upon his human rights. Interim measures were merely a step to preserve those rights from being ‑ ‑ ‑
KIEFEL J: I understand that.
MR MERKEL: ‑ ‑ ‑ in effect, irreversibly reduced, which is the language of the court in respect of Articles 2 and 3.
KIEFEL J: Well, they are reduced but they are not completely without effect. If the Court of Human Rights made a declaration that his Charter rights had been contravened, one would assume that a court here would take some notice.
MR MERKEL: I think the jurisprudence of the court, and I can take your Honours to it, it is very clear that the deportation or extradition, assumed to be lawful, of a person claiming protection against infringement of their Article 2 and Article 3 rights, irreversibly reduces those rights so the court can no longer effectively protect them and that is a hindrance under Article 34 because the very rights they are seeking to be protected from are then removed because they are deported to Australia which has no obligation under the Convention. The critical element in all of the cases is knowledge by the State party of the request for the interim measures and there is no difference in status between removal to avoid a request being considered ‑ ‑ ‑
KIEFEL J: All right, I think I follow you. I do not want to take up your time with it.
MR MERKEL: Your Honour, the real problem here was that the court made two fundamental errors which meant it never dealt with the case. The first was it said it was only authoritatively established that a deportation, contrary to an indication of special measures, of which the State party knew, is a breach and, secondly, there may be a breach where there is a deliberate prevention. Because they treated senior counsel for Mokbel as conceding that this was not a case of deliberate prevention and there had been no special measures, the case that was really being put was never considered or dealt with and that is why there were no findings of fact on the critical issues ‑ ‑ ‑
CRENNAN J: Where is that mistake, Mr Merkel, in the Court of Appeal’s judgment asserted in any way?
MR MERKEL: At application book 80 to 81, at the bottom of page 80, their Honours say:
It is sufficient to repeat that the only relevant proposition which has, to date, been authoritatively established is that a Contracting State violates art 34 if it extradites a person in defiance of interim measures of which the State has been notified.
We say, properly analysed, and I will try and take your Honours to it in a moment, a request of which they have notice for interim measures has the same status as interim measures if there is an intention to deport someone in a way that will defeat that request.
KIEFEL J: Well, does your case come down to this then, that the extraditing State and the requesting State are both obliged to await the outcome of an interim measures application, of which they have informal notice? Is that what it comes down to?
MR MERKEL: Your Honour, the way in which it is put in the cases, and I will take your Honour to it ‑ ‑ ‑
KIEFEL J: No, could you ‑ ‑ ‑
MR MERKEL: ‑ ‑ ‑ is that they are obliged ‑ ‑ ‑
KIEFEL J: Just answer my question, Mr Merkel.
MR MERKEL: Yes, your Honour. Not the requesting State because it is not bound by the Convention but the Convention State is obliged, if it sees the application is not a plausible one, to approach the court and ask for the court to make an appropriate ruling and that is in Orhan, your Honour, which is at tab 5 of our authorities.
KIEFEL J: But I am not so much interested in the jurisprudence of the Court of Human Rights on this issue, but how this Court would approach the question of the actions of the Commonwealth of Australia in relation to what was done, but I think you have accepted that your proposition is that both Greece and Australia should have done nothing further until the interim measures application was determined. That seems to be your point.
MR MERKEL: Your Honour, not Australia. Greece - the course for Greece in accordance with Orhan - this is at pages 77 to 78 and Orhan is at tab 6 - says:
Even if a Government has reason to believe –
this is a State party government –
that in a particular case the right of individual petition is being abused, the appropriate course for that Government is to alert the Court and inform it of their misgivings . . . To proceed as the Government did in the present case was, the Court finds, reasonably interpreted by the applicant as an attempt to intimidate him.
We say, in our case, an attempt to circumvent his right to go to the European Court. The Australian party, your Honour, has no obligation under the Convention but, as in Moti, if the Australian Government is complicit in Greek circumvention and prevention of him having his rights, then that raises the abuse of process point.
KIEFEL J: Well, that is what it comes down to, some kind of conspiracy, really, and was not Australia informed by Greece that there was no impediment to the extradition?
MR MERKEL: Yes, your Honour, and that was an information that was correct because it was at 9 May before Greece was served and before Australia was formally served - when I say served - by Mr Mokbel’s attorneys. Until they had notice, not just of the application, but of the application’s reliance on Articles 2 and 3 and its seeking of interim measures, were they on the requisite notice to attract Article 34. That only happened between 13 and 16 May, a period the court simply did not focus upon because it treated counsel wrongly as conceding deliberate prevention was not part of her case which was really the only case she was putting forward.
CRENNAN J: I was asking you before where the concession is dealt with – you may have misunderstood me, Mr Merkel.
MR MERKEL: Sorry, paragraph 60, your Honour, at page 80:
The submission for M accepted that Greece had ‘not deliberately prevented’ the European Court from deciding on his request for interim measures.
In our reply, we have set out at length passages where counsel for Mokbel had said there was deliberate circumvention ‑ ‑ ‑
KIEFEL J: I am sorry, is that the concession that you were talking about?
MR MERKEL: Yes. Yes, your Honour.
KIEFEL J: I see – “accepted that Greece had not”.
MR MERKEL: That is the very case she was putting in the first sentence and we have set out in our reply, which I will not take your Honours to, that all the passages where senior counsel for Mokbel had said there was deliberate circumvention, there was joint participation, there was an unedifying ‑ ‑ ‑
KIEFEL J: What is the evidence of the conspiracy involving Australia?
MR MERKEL: The evidence involving, your Honour puts it as conspiracy, we say complicity or agreement or it may be conspiracy but not in criminal terms because Australia did not breach Australian law, but the evidence is that the Australian Government had been closely following the possibility of an application to the Court of Human Rights. They had looked at all the European jurisprudence.
KIEFEL J: Well, that would only be sensible and proper.
MR MERKEL: Sensible and proper, your Honour, until we get to 13 May when they get served with - or 12 May when they get put on notice of the precise grounds of the application. They know of Article 34 and they know of the European jurisprudence. They knew of all the facts that made Greece’s extradition of Mokbel between the 13th and the 16th a clear and flagrant breach of Article 34.
KIEFEL J: In what respect?
MR MERKEL: Because ‑ ‑ ‑
KIEFEL J: That would mean an acceptance of the substance of the application?
MR MERKEL: No, your Honour. It is an acceptance that his removal will have the effect of hindering the effective exercise of his right. Their own emails accepted that if his application was accepted it could have a delay of one to five years and it was that they were seeking to avoid by his extradition before the court could deal with the matter. It is all in the emails, your Honour, none of which are set out in any of the judgments because the court never directed itself to the question that was really being put to it.
Can I take your Honours to the “no impediment” point? Time and again the Court of Appeal referred to an email that said there is no impediment and that is what Greece had told them. That was an accurate statement on 9 May because Greece ‑ ‑ ‑
CRENNAN J: Well, we have that point.
MR MERKEL: Yes. So, your Honours, we say that Australia had knowledge in accordance with Australian law of all the elements of Greece’s contravention and all Australian case law that makes it complicit; makes it a party to that contravention – Yorke v Lucas‑type principles, conspiracy‑type principles. It was a joint participation in removal of him in breach of Article 34.
KIEFEL J: What if Australia - and I think this arises from the Commonwealth’s submissions - what if the Australian officials had bona fide held the view that Greece was not obliged to holds its hand in relation to extradition? They are entitled to inform themselves and take their own view of Article 34?
MR MERKEL: Your Honour, the evidence is to the contrary. The evidence showing Australia ‑ ‑ ‑
KIEFEL J: What, that they actually had a contrary view?
MR MERKEL: No. What the evidence shows is that they were aware of all the essential facts that constituted the contravention by Greece as from 12 May and they actually ‑ ‑ ‑
KIEFEL J: That just means the fact of the application ‑ ‑ ‑
MR MERKEL: No ‑ ‑ ‑
KIEFEL J: But what you said before was, assumed that Australia also understood the jurisprudence that you have referred to and implicit in that is, accepted the view of the jurisprudence of the Court of Human Rights in relation to Article 34 that you are putting forward.
MR MERKEL: Yes, your Honour, and they knew the facts that made Greece contravene Article 34 by participating with Australia in his extradition because it is not just the fact of service of the application. It is the content of the application and the nature of the rights sought to be protected and the request for the court to protect them. What Article 34 does is create a contravention before the court necessarily can intervene or does intervene to protect the court’s jurisdiction.
KIEFEL J: But it may be one thing to say that if there had been an interim measures order made that, if Greece then sought to cut across it or defeat it by extradition and Australia was aware of that, that is one thing, but up until the time that the interim measures order is made, why are not the extraditing country and the requesting country able to proceed according to the terms of their own laws?
MR MERKEL: Because, your Honour - can I take you to the second case itself, sorry, it is case No 3 in our tab. Al-Moayad is a request case, not an interim measures case by the court and the only reason Article 34 was found not to have been breached in the request case was Germany was found not to have knowledge of the request.
In other words, looking through these cases, the essential element is interim measures or a request for interim measures of which a State party knows, which will be defeated in the sense I have mentioned, resulting then in extradition or deportation before the court can deal with the matter, is a breach of Article 34, a point the Court of Appeal did not accept because it confined its consideration to cases where there were special measures but Al‑Moayad is a case where the only reason Germany was found not to be in breach, because it was not aware of the request when it deported Al‑Moayad. So we say that the jurisprudence is quite clear ‑ ‑ ‑
KIEFEL J: In that case there was only application for an interim measure?
MR MERKEL: Correct, your Honour.
CRENNAN J: Does the European Court give an indication to anybody that it is not minded to make any interim measures or does time just roll by?
MR MERKEL: Time, I think the European Court appears to act on the basis that once a request is made, it will deal with it. It will notify State parties and expect State parties to act. It leaves to the parties any process of informing State parties of the application and, in Al‑Moayad, the only reason Germany was not aware is that it was sent to the wrong fax number and in the result at the time of the deportation there was not the requisite awareness, but that is the process, your Honour ‑ ‑ ‑
CRENNAN J: If you think of the analogy of somebody putting another party on notice that they are going to apply for an interlocutory injunction, and then nothing happens, one could not say that the other party had its hands tied about any conduct that might have been covered by the interlocutory relief.
MR MERKEL: Absolutely, your Honour, and the difference between our system and the European Convention system is the fundamental core rights that are protected by Article 34. We can only get an injunction of the court absent someone trying to interfere with the course of justice or going to an extreme measure, but if one looks at the Tait case, in Tait there was a stay because Victoria had refused to undertake not to execute Tait. The High Court in the short judgment of Sir Owen Dixon said it was necessary to maintain the integrity and authority of the Court to grant the stay, irrespective of the merits of the case.
Now, in Orhan, the same is said by the court. If a State party feels an application is without merit, it is not appropriate for the State party to take the law into its own hands. It is appropriate for the State party to then proceed to come to the court and express its concern and allow the court to adjudicate.
KIEFEL J: Mr Merkel, what the European Court of Human Rights says does not bind this Court. It is this Court that determines whether or not in the circumstances Australia, as the requesting party, acted in a way which involved a wrongdoing, such as would undermine the extradition process. Whatever the Court of Human Rights considers to be the correct application of its processes and how it would preserve the integrity of its processes is one thing, how this Court approaches the conduct of a party as it affects the processes and exercise of power under the Extradition Act is quite another.
MR MERKEL: I accept what your Honour says - I notice my time is up but if I could respond to your Honour’s question. This Court in Moti says there are two steps: in this case, was applying those two steps - did Greece contravene Article 34; second step, is Australia complicit or involved in Greece’s contravention such that taking advantage of the extradition is an abuse of process. We say that case has never been determined at first instance or on appeal and we say that is why special leave should be granted.
We do say that raises a very important point of principle about the circumstances in which Australia might seek to beat the European Court because that is really the road map laid down by the decision of the Court of Appeal. Do it, do it quickly, beat interim measures and therefore you can lawfully get someone out of the country under Australian law, albeit that it is illegal under the Charter or the Convention.
CRENNAN J: Is it convenient to go to your sentencing appeal or is it more convenient to parties if we ‑ ‑ ‑
MR MERKEL: I am in your Honours’ hands. I can move straight to the sentencing appeal if it ‑ ‑ ‑
CRENNAN J: I think we might be assist by hearing from Mr Gleeson.
MR MERKEL: If the Court pleases.
MR GLEESON: Your Honours, just very briefly, the first point is that you will have seen from the draft notice of appeal that the case is now reframed as a, well it is really a conspiracy or common enterprise case, acting in concert with a common purpose to hinder the exercise of the European Court’s jurisdiction. That is on pages 110 and 111. That case should not be permitted. It was never framed in that fashion before in the court below.
The second matter, in relation to one of your Honour Justice Kiefel’s questions, undoubtedly if Mr Mokbel had wished to continue with an application in the ECHR under Articles 2 and 3, he could have done so. The position appears to be he has done nothing to continue to indicate such a case. The suggestion that the dispute, the subject matter in that court has been destroyed by surrendering him to Australia is simply contrary to that fact.
KIEFEL J: It is only that that court cannot operate by way of what we would call an injunction to prevent the extradition.
MR GLEESON: Exactly, and what it can do, and one of the best case that was relied upon by Ms Mortimer for Mr Mokbel was Mamatkulov and the court looked at that and distinguished it but Mamatkulov, amongst other things, is an example of the court in Europe continuing to hear the application, notwithstanding that the surrender has already occurred and of course in that case ‑ ‑ ‑
KIEFEL J: One would have thought that the Court of Human Rights might generally desire to vindicate someone’s rights or interests by pronouncement, by way of declaration or otherwise, if they thought that its jurisdiction had been affected.
MR GLEESON: Exactly, and what occurred in Mamatkulov was the court saying, number one, Turkey carried out the surrender in the face of and after interim measures, number one; and number two, the surrender had the effect that the poor gentleman disappeared into the system of the requesting State, was denied any access to his lawyers and the lawyers running the case in the ECHR could not even then put proper submissions upon whether he had had a fair trial or not.
KIEFEL J: What inference do you say that this Court would be invited to draw from the failure to pursue the application in the Court of Human Rights to its conclusion?
MR GLEESON: One inference is that the claim is, prima facie, implausible because it could be pursued and has not been pursued. That is the first. The second in terms of the ECHR is, given as your Honour Justice Crennan said, it acts promptly within 24 hours if appropriate. That court had six weeks to consider the papers and took no action. In the end, Mr Merkel’s case rises no higher than what is at page 62 which is the case that Mr Mokbel has always run. It is the case that Justice Whelan correctly dealt with – paragraph 11. The case is what Australia had to do was wait. It had to:
wait until all possible avenues . . . were exhausted.
Justice Whelan dealt with and disposed of that case. Your Honours, the only final matter was the suggestion that the Court of Appeal has not fairly or properly dealt with Ms Mortimer’s submissions is not correct. Could I simply give one point, which is page 261, where President Maxwell and Justice Weinberg were attempting to make sure that they had ascertained the core of Mr Mokbel’s case. At the top of 261, Ms Mortimer said:
But if we can’t persuade the Court that there is a violation of Greece’s obligations –
that is the end of the argument. That is the first step. Then Justice Weinberg said you would need to do more. You would need to establish “knowledge or culpability” on the ground of Australia and then, at about line 14 or 15, Ms Mortimer agreed that the “high point” of their case was the “email behind tab 14”. That is the email of 9 May which the court dealt with in detail at page 83 and the court declined to come to the inference that here was Australia knowing and believing it was participating in a breach of the European Convention by Greece.
So the absolute square essence of the case which involved, did Australia have that knowledge and culpability, the court addressed at page 83. The findings in paragraph 69 we would submit are correct. Based on those findings, there would be no abuse of process under our law. If your Honours please, that is what we wish to put.
CRENNAN J: Thank you.
MR GYORFFY: I hope I can be briefer. Your Honours have the submissions on behalf of the State of Victoria. The one point I want to emphasise is this. The whole case put against us is categorised on the basis of a conspiracy. I have not heard any argument put against paragraph 65 of the judgment at application book 81 and it is our submission that that correctly categorises the actions of the Australian officers. They were acting entirely properly, as lawyers would act, looking at the possibilities,
looking at what the consequences of certain possibilities are and giving advice in accordance with that.
That is not a conspiracy. That is a lawyer acting properly and ethically. That is all that has happened, so unless the applicant can get beyond a mere breach of the Act and, as your Honours have pointed out, indicate some wrongdoing that undermines the process of the court, there is no abuse of process. In our submission, that paragraph accurately summarises what was done by the Commonwealth officers and that is not an undermining of the processes of the court. It is actually an upholding of the law. Nothing further, your Honour.
CRENNAN J: Thank you. Yes, Mr Merkel.
MR MERKEL: Your Honours, can I take your Honours to page 83 which my learned friend the Solicitor relied upon as Ms Mortimer’s high point. In the last paragraph it says:
It would be advisable to arrange for surrender as soon as possible and if possible prior to Greece’s notification of the application by the ECHR.
What Ms Mortimer went on to analyse with the court were the steps after 9 May that showed that is precisely what Australia sought to do. After Greece’s notification by Mokbel’s attorney and Australia’s knowledge of it ‑ ‑ ‑
KIEFEL J: Where did Ms Mortimer say that?
MR MERKEL: Your Honour, at pages 296 to 297 we have set out our response to the Solicitor’s suggestion that we have refashioned our case.
KIEFEL J: Where does it appear in the argument?
MR MERKEL: Sorry, your Honour. What Ms Mortimer did is put the whole argument on principle, then took their Honours through the chronological sequence throughout, taking it chronologically through email after email up to the extradition on the 16th. If your Honours look at the transcript you will see that it comes up based upon initially Australia’s intention to make sure his extradition occurs before notification and then, once they know that the matters have been served on Greece and they have knowledge of it, there is what Ms Mortimer said is an unedifying race to get him out before the court can intervene.
KIEFEL J: How do you overcome the discussion at page 261, to which Mr Gleeson referred, and particularly acknowledgment that the email was really central to the applicant’s case?
MR MERKEL: It was central, your Honour, but as a stepping stone as to what happened up to 16 May. That was the start of Australia’s knowledge and intent that he must be got out quickly because the chronology we have set out in the application book shows that they believe there will be no notification prior to the 21st, so that is the latest date by which he should be removed. They were trying to beat the notification and they were trying to make sure that the delays which all of the emails had set out would not occur.
CRENNAN J: The other way of looking at is they were trying to effect what had been notified as a lawful extradition within a period of time consonant with no interim measures being made.
MR MERKEL: Your Honour, that would be correct if they were not aware of all the facts which occurred after 9 May.
CRENNAN J: But the application was made in April, was it not, Mr Merkel?
MR MERKEL: Yes, your Honour, but the Australian emails make it clear it could not be acted upon by the court until all domestic procedures had been exhausted, which occurred on 7 May with the Greek Minister’s order for extradition, and in that very email there is an analysis that the earliest time at which any indication would be given would be 21 May and probably later, then the race started to get him out. The emails show that they are aware Mokbel’s attorneys are trying to get together evidence to support their application. Everywhere we must act quickly and that is what they did.
So we say, with respect, it is not correct to just isolate one date. Our real point is it was what happened at the end that was – Ms Mortimer put the case on the basis that it was the knowledge of Greece and Australia and their steps on 16 May when extradition occurred were critical. Everything led up to that date and that is a case that has never been considered by the court.
CRENNAN J: It might be convenient to move to the sentencing appeal, Mr Merkel.
MR MERKEL: If your Honour pleases. Have your Honours received our application for leave to amend under rule 3.01?
CRENNAN J: Yes, we have, thank you.
MR MERKEL: With amended grounds and amended argument. I understand the State do not oppose, do not consent and are prepared to proceed so we would formally ask for leave to amend to raise those grounds and put the case on the basis set out in the outline.
CRENNAN J: You have that leave, Mr Merkel.
MR MERKEL: If your Honour pleases. Can I take your Honours to Justice Whelan’s decision at application book pages 38 to 39? His Honour at paragraph 45 sets out what became the joint sentencing submission and the second sentence is where the matter is derailed and that is that the joint submission that there be an effective “minimum term” of “20 to 23 years” takes into account the “current Commonwealth sentence” which was Justice Gillard’s sentence of which over five years had been served.
CRENNAN J: The Court of Appeal was well aware of this error when it came to deal with the sentencing appeal.
MR MERKEL: Correct, but can I just take your Honours to paragraph 48. His Honour gave that submission, importance in this case, and referred to Williams. So this is not a case where the court says thank you, that is interesting but we go our own way. His Honour sought to apply the sentencing submission – as a joint sentencing submission his Honour said the practical benefit is “a significant mitigating factor” and then his Honour said these words:
The DPP is in a good position to assess that issue and, for that reason, the “agreement” he concluded as to sentencing range on the non‑parole period is an important consideration to take into account.
Then his Honour says of course he is not bound by it.
KIEFEL J: Not the least because it is just an expression of opinion, is it not?
MR MERKEL: That is right, although in this case, your Honour, his Honour did go further. This is not an opinion about an appropriate range. It was really an opinion about how the totality principle should operate and say, having regard to the total criminality involved in the previous and the present offences, this is a case where the effective minimum sentence, the non‑parole period, should take into account the five years served.
KIEFEL J: Well, if it is a submission about how the totality principle is to apply, even less reason for it to have any weight at all with his Honour.
MR MERKEL: Your Honour, his Honour sought to give effect to it on the basis that the DPP was in a very good position to make a submission to the court and his Honour gave it weight. His Honour misapprehended the submission because, in effect, that meant that what was intended to be a – as it turned out, 22‑year non‑parole period, which was within the sentencing range submitted, became a 27‑year imprisonment period.
Before the Court of Appeal – and this is at application book 85 – three grounds were set out in paragraph 75. Their Honours allowed the first ground after receiving a report from his Honour, which I will come back to in a moment, and disallowed grounds (b) and (c), but particularly (c) that the sentence was “manifestly excessive” and then granted leave only on the first ground.
Their Honours referred to the trial judge’s report and his Honour in the trial judge’s report had indicated that if that was the Crown’s intention that there be an effective sentence taken into account and therefore it had been reduced by Justice Gillard’s sentence, then that would have been too low. But the actual terms of the report are set out at page 92, your Honours, at paragraph 99. In our amended outline we set out at paragraph 16 the joint sentencing submission made to Justice Whelan, repeated in the Court of Appeal:
It is submitted the totality of Mr Mokbel’s criminality (including the cocaine importation offence for which he is currently serving a sentence) calls for an effective overall head sentence between 26 to 29 years and a total effective overall minimum term of between 20 to 23 years.
That takes into account the federal sentence. Then when the report was called for from the trial judge under section 316 – it is set out at paragraph 99 of the application book at page 92 - what his Honour said:
At the time of sentence I interpreted the Crown submission on sentencing range as being a submission as to the appropriate range from the date of sentence, taking into account the unserved portion of the cocaine importation sentence imposed by Justice Gillard.
I intended to impose sentences for the offences before me resulting in a total effective sentence of 30 years’ imprisonment with a non‑parole period of 22 years (subject to applicable pre‑sentence detention) from the date of sentence.
If the Crown submission as to sentencing range was intended to be that the range was to be ‘backdated’ to the commencement of the cocaine importation sentence, or was to be calculated from that earlier date, then:
(a)that is not how I understood it at the time of sentence, and –
critically –
(b)in my view, such a ‘backdated’ range would be significantly too low.
Now, your Honours, the same sentence as had been put to Justice Whelan was put to the Court of Appeal and joined in by the Crown. In the result ‑ ‑ ‑
CRENNAN J: But their task is to decide whether any lesser sentence should be imposed.
MR MERKEL: Yes, your Honour, and just taking your Honours to what Justice McHugh had said in this Court about the task in that situation – it is at tab 2 of our bundle and it is in the case of Postiglione. At page 308, about a quarter of the way down, his Honour said – and this is a case where there had been an earlier sentence and the person was in prison at the time of the later sentence, so it was on all fours with our case:
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.
Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
Now, your Honour, what his Honour is saying, and we submit, with respect, is the law, that in a case such as the present the sentencing judge had not considered that. The essential element was that was what the joint submission was. You must consider the total criminality. The Court of Appeal, we say, could not, on any reasonable reading of its reasons, have given real and genuine consideration to this principle of the total criminality involved in the two sentences. There is no more than a passing reference to totality in paragraph 119 of their Honours’ reasons. That is dealing with a manifestly excessive ground which their Honours had said was not a ground of appeal ‑ ‑ ‑
CRENNAN J: It is not a passing reference. It is a reference to the consideration that proper regard must be paid to questions of totality and proportionality. That is after having looked at the specific factors in relation to Mr Mokbel’s precise circumstances.
MR MERKEL: Your Honour, there are two things we would say about that. Firstly, your Honour, that what was never considered was any criminality involved in the earlier offence, the total criminality, cumulatively in the earlier or later offences and if, and whether, there should be any reduction in respect of the earlier offence. Nothing was said about those matters. A report merely to say, as in 119, there is a principle of totality, but not apply it in this case and not give reasons for not applying it, we do not say there is any rule it must be applied but when both the Crown and the defence have gone to the court on the basis that this is a case where it should be applied, we say that case is simply not dealt with by the Court of Appeal.
Now, associated with that are the problems that arose with the judge’s report. We cannot understand why their Honours spent about two paragraphs on what the appropriate sentence was and then about seven or eight pages on why the sentence imposed by Justice Whelan is not manifestly excessive. Our problem in this case, your Honour, is with the judge’s report. His Honour entered the ring and his Honour became an advocate on the appeal in two respects – one is ‑ ‑ ‑
KIEFEL J: That is not the issue. The issue is whether or not that has affected the Court of Appeal. I mean the Court of Appeal accepted that there was an error in the sentencing discretion. Anything that he said in the report ‑ ‑ ‑
MR MERKEL: It did, your Honour, but what happened in the Court of Appeal – can I take your Honour to tab 4 which sets out the transcript. Counsel for Mr Mokbel at page 4 at line 16 took objection to paragraph (b) – and can I say, your Honour, that the point we want to make is a perception point as well as what in fact happened. At page 4, counsel says, in the last line, that opinion “ought to be put aside” Justice Weinberg said “Why?” and the response to that is over at page 5 at line 16:
it doesn’t advance, for your Honour’s benefit, a consideration of what might have been the result of his Honour having synthesised the correct range.
Then counsel for the DPP, Ms Dalziel, at page 28, line 5 says ‑ ‑ ‑
KIEFEL J: That is all very interesting, but the question is whether or not the Court of Appeal was wrong in the way in which it approached it in its reasons.
MR MERKEL: What we say, your Honour, is that we have at tab 7 your Honour’s decision in SKA v The Queen about the role of a judge’s report and your Honour Justice Crennan set out at pages 431 through to 432 that involvement by a judge in the issues to be determined in circumstances where the report is really of no utility because everything relevant appears on the transcript, your Honour said at paragraph 114, in the middle of page 432:
Her Honour –
This is Justice Simpson in the Court of Appeal –
also rightly deprecated the trial judge’s expression of the view that the jury verdicts were unsafe –
and the plurality judgment agreed with that. Now, at tab 8, we have a pronouncement on this very issue by the Court of Appeal in Queensland in R v Mitchell where the judge had, in a report, commented upon the sentencing. The Chief Justice, Chief Justice de Jersey, at page 16, in the middle of the page, said:
I also agree with Justice Atkinson’s reasons. There is another incidental issue I wish to address separately. It concerns the content of the learned primary Judge’s report to the Court . . .
In this era when full transcripts are regularly available it should rarely be necessary or justified to go further.
Over the page:
Importantly Judges do not and should not use such reports as a vehicle for advocating the appropriateness of, for example, the sentence imposed.
KIEFEL J: That may be all very well, Mr Merkel, but where is it that the Court of Appeal - we can see that the Court of Appeal acted upon what his Honour said?
MR MERKEL: Your Honour, can I just go to the next line because it is a perception point that his Honour points out, which has never been considered by this Court, as far as we can ascertain, and that is ‑ ‑ ‑
KIEFEL J: Where does the Court of Appeal in this case – where can you show us that it has acted upon what his Honour said. It is one thing to say this should not have been done, it gives wrong perceptions. The question is what effect did it have on the Court of Appeal’s reasoning.
MR MERKEL: What we say are two things, your Honour. The first is that the principle that flows from what your Honour Justice Crennan said in RSA is that an appeal court should disavow any reliance on such a report to avoid the perception that Chief Justice de Jersey mentioned in this case ‑ ‑ ‑
CRENNAN J: Well, they have done that in this Court of Appeal decision at paragraph 102. Their Honours note the report and what his Honour had said and they go on to say that there was an error in what his Honour did. He was mistaken about the effect of the joint submission. Then their Honours go on to say what question that poses for them, and that is the question of whether a different and lesser sentence should be imposed. Then at 104 and 105 their Honours deal with in broad, and then go on to deal with more specifically why they do not regard it as appropriate to impose a different or lesser sentence. The nub of it is that the offending was of the very highest order, as is set out in 104.
MR MERKEL: Which does not have regard to totality, your Honour. I accept what your Honour says but then at ‑ ‑ ‑
KIEFEL J: That is a different point.
MR MERKEL: At 106 and to the rest of the judgment their Honours then deal with a ground that was not raised as a leave ground and quote extensively from his Honour’s judgment and reasoning ‑ ‑ ‑
CRENNAN J: On one view, the reason their Honours use that heading for dealing with what follows is that they are considering or explaining why they are not dissuaded that a lesser sentence should be imposed.
MR MERKEL: That is a reason but they could have set that out in the reasons for why the sentence was appropriate. One view of the reasonable bystander was that this section on manifestly excessive was, in effect, dealing with what the judge had said – “I would have imposed the same sentence anyway”. What I was wanting to read to your Honours was what the Chief Justice said, that the reason why on sentencing they should not be advocating the appropriateness of the sentence imposed – this is at the top of page 17:
That is because it would be inimical to perceptions of the objectivity of the appeal process were an appellate court to be seen as receptive to representations from the Judge whose sentence or order is the subject of the appeal or application. The outcome of an appeal in this adversarial system falls to be determined by the Court of Appeal on the basis of the submissions of the parties to the proceeding.
While this Judge’s report was not extensive or comprehensive it did trespass beyond the legitimate bounds, hence these observations. It should, however, be confirmed that the content of the report had no bearing on the Court’s disposition of the application.
Now, what we say arises from…..and his Honour, the Chief Justice’s observation, is that because of the perception that the process of justice is unfair or that there is procedural unfairness in the judge, in effect, becoming a third party on the appeal, the appropriate course, using your Honour’s approval of what had been said in New South Wales, the appeal court rightly should deprecate such a report ‑ ‑ ‑
KIEFEL J: But the court here did say what it made of what his Honour said. It said:
Though his Honour has said since that he would have regarded the range actually submitted as ‘significantly too low’, we could not be satisfied that there error was immaterial.
That is the top and bottom of it. Beyond that, the court gives absolutely no weight to his Honour’s view and it does not need to because, as Justice Crennan has pointed out, in the following paragraph it regards this offending as about the highest there could be.
MR MERKEL: With respect, it goes back to the Kioa‑type principle, your Honour, where it is not just what the court says in its reasons, it is what the reasonable bystander might apprehend. What I thought was said clearly by your Honour in approving what was said in New South Wales about deprecating the use of such reports in this way and by what Chief Justice de Jersey did confirmed the court is not relying on it in any way, that should be expressly set out to allay any concern of the reasonable bystander that there is unfairness in the judge entering the ring.
What we say in the present case is Chief Justice de Jersey’s criterion has been met. There has been a trespass and that is inimical to the interests of justice. What this Court has not considered is what, if any, consequence should follow. We say it is not just a matter of whether we can demonstrate the trial judge’s report was used or misused, but there is a perception that
the trial judge has entered the ring and it is that reasonable perception of the bystander that we say is critical.
On what they did use the judge’s report for, can I indicate it was in that earlier paragraph I took you to where his Honour said the joint sentencing submission was important and his Honour then applied it. So, clearly, even though his Honour said that it made no difference ‑ ‑ ‑
KIEFEL J: The court used the report to show that there was an error which favoured your client.
MR MERKEL: And paragraph (b), your Honour, was the trespass which we say the cases make clear should not occur and where a Court of Appeal should make sure it is not to be relied upon and should state so explicitly. So we say that gives rise to a point of some considerable importance. It is a concern in this case because the Crown Prosecutor, the DPP, representing the DPP said he can rely on the report and there is nothing in the transcript and no clear statement anywhere that the court is disavowing reliance or confirming non‑reliance. We say that is an important point of principle which justifies the grant of special leave in this case. If your Honours please.
CRENNAN J: Thank you, Mr Merkel. Mr Gyorffy, we will not trouble you for the time being. The Court will adjourn for a moment.
AT 11.31 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.33 AM:
CRENNAN J: These applications concern, firstly, the extradition of an individual from a country owing obligations under the European Convention on Human Rights in circumstances where the individual sought interim relief under the Convention to restrain his extradition and, secondly, the length of a term of imprisonment imposed on an offender in circumstances where the submissions of the Crown identified a range which involved a lower sentence.
We are not persuaded that the applicant enjoys sufficient prospects of success in disturbing the orders made by the Court of Appeal to warrant grants of special leave. Nor are we persuaded that it is in the interests of justice that there be grants of special leave to appeal to this Court. Accordingly, special leave to appeal is refused in each of these applications.
The Court will adjourn to reconstitute.
AT 11.34 AM THE MATTERS WERE CONCLUDED
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