Moti v The Queen

Case [2011] HCA 50


HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

JULIAN RONALD MOTI  APPELLANT

AND

THE QUEEN  RESPONDENT

Moti v The Queen [2011] HCA 50
7 December 2011
B19/2011

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 16 July 2010 and in its place order that the appeal to that Court is dismissed. 

On appeal from the Supreme Court of Queensland

Representation

I M Barker QC with P J Doyle for the appellant (instructed by Herdlaw Solicitors)

J V Agius SC with M C Chowdhury for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Moti v The Queen

Abuse of process – Criminal proceedings – Appellant was citizen of Australia suspected of child sex offences against Australian law committed overseas – Appellant deported from Solomon Islands to Australia by Solomon Islands Government contrary to Solomon Islands law – Australian Government representatives in Solomon Islands aware, and informed superiors in Canberra, of illegality – Australian Government issued travel document for appellant and visas to Solomon Islands officials, which facilitated deportation ­– Appellant charged and prosecuted on arrival in Australia – Whether circumstances of appellant's removal from Solomon Islands required permanent stay of his prosecution.

Abuse of process – Criminal proceedings – Complainant and certain family members made statements about appellant's conduct to Australian Federal Police ("AFP") – Complainant and family later refused to participate in prosecution as witnesses unless given "financial protection" – AFP made significant payments to complainant and family – Payments exceeded AFP guidelines but not unlawful – Whether payments to witnesses required permanent stay of appellant's prosecution.

Private international law – Act of State – Act of foreign State – Appellant prosecuted in Australia for offences against Australian law committed overseas – Appellant asserted illegality of Solomon Islands Government's actions under Solomon Islands law in application for permanent stay of prosecution – Whether Australian court can examine, as preliminary to ultimate decision under Australian law, legality of foreign government's actions under foreign law.

Words and phrases – "abuse of process", "act of foreign State", "act of State", "deportation", "disguised extradition", "foreign law", "payment to witness", "preliminary".

Australian Passports Act 2005 (Cth), s 9.
Financial Management and Accountability Act 1997 (Cth), s 44.
Deportation Act (Solomon Islands) (c 58), ss 5(3), 7.

  1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. On 3 November 2008, the Commonwealth Director of Public Prosecutions presented an indictment in the Supreme Court of Queensland charging the appellant with seven counts of offences contrary to s 50BA of the Crimes Act 1914 (Cth). At the times relevant to this matter, s 50BA, read with s 50AD, provided that an Australian citizen who, whilst outside Australia, engages in sexual intercourse with a person who is under the age of 16 years commits an offence punishable…

Continue reading Moti v The Queen

Sign in free to access the full text

Details
AGLC
Moti v The Queen [2011] HCA 50
Case
[2011] HCA 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the appellant, who was facing criminal charges in Queensland for child sex offences allegedly committed overseas. The appellant sought a permanent stay of these proceedings, arguing that his removal from the Solomon Islands to Australia constituted an abuse of process. This removal was allegedly carried out by Solomon Islands officials contrary to their own laws, with the knowledge and facilitation of Australian Government representatives. A secondary argument for the stay concerned payments made by the Australian Federal Police to the complainant and her family, who were potential witnesses.

The central legal issues before the High Court were whether the circumstances of the appellant's removal from the Solomon Islands warranted a permanent stay of his prosecution, and whether the payments made to witnesses rendered the prosecution an abuse of process. The court was also required to consider whether an Australian court could examine the legality of a foreign government's actions under its own law when determining an application for a permanent stay of proceedings.

The High Court reasoned that the payments to the complainant and her family did not justify a permanent stay, as they did not create incurable unfairness in the trial and were not unlawful. These payments were made after witness statements had been obtained and after steps had been taken to procure the appellant's return, and any impact on witness credit could be explored through cross-examination. However, the court found that the actions of Australian officials in facilitating the appellant's deportation, despite knowing it was unlawful under Solomon Islands law, constituted an abuse of process. The court concluded that the maintenance of proceedings against the appellant was an abuse of process and should have been permanently stayed.

Consequently, the High Court allowed the appeal, set aside the order of the Court of Appeal of the Supreme Court of Queensland, and ordered that the appeal to that Court be dismissed. The High Court ordered that the further prosecution of the charges be stayed as an abuse of process.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 16 July 2010 and in its place order that the appeal to that Court is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J (dissent)
It is no answer to the three matters that have been identified in relation to the present case to say that the High Commission could not deny an issue of a document of identity to the appellant. That may or may not be right if the appellant had sought the issue of such a document[88], but he had not. Nor is it an answer to these matters to say that the High Commission would not deny the issue of visas to Solomon Islands officials. The critical observation is that what was done by Australian officials not only facilitated the appellant's deportation, it facilitated his deportation by removal on 27 December 2007 when Australian officials in Honiara believed that this was not lawful and had told Australian officials in Canberra so. It follows that the maintenance of proceedings against the appellant on the indictment preferred against him on 3 November 2008 was an abuse of process of the court and should have been permanently stayed by the primary judge.[88]See Australian Passports Act 2005 (Cth), s 9(1), (3).Conclusion and order For the reasons that have been given, further prosecution of the charges laid in the indictment preferred against the appellant on 3 November 2008 should be stayed as an abuse of process. The appeal to this Court should be allowed. The order of the Court of Appeal of the Supreme Court of Queensland made on 16 July 2010 should be set aside and in its place it should be ordered that the appeal to that Court is dismissed. One of the appellant's arguments for a permanent stay of the criminal proceedings against him is that there will be unfairness in his trial in the Queensland courts by reason of potentially unreliable evidence. The other argument centres on illegality in the method by which he was removed from the Solomon Islands and brought before the Queensland courts, but does not contend that that illegality would generate an unfairness in the trial. Paying witnesses The payment of money to the complainant and her family does not justify a permanent stay because it does not create incurable unfairness in the forthcoming trial. The payments did not bring the appellant before the Queensland courts. They were not unlawful. They were not offered in order to induce the complainant to provide information to detectives with a view to considering whether to prosecute. Instead they were requested by the complainant and her father in the summer of 2007-2008, after the Australian Federal Police had obtained affidavits from the complainant and her family, after the Commonwealth Director of Public Prosecutions had advised on 9 August 2006 that there were reasonable prospects of conviction, and after the Australian Government had in October 2006 taken steps with the Solomon Islands Government to procure the appellant's return to Australia. It is one thing to pay a person's living expenses as the price for the provision of a statement of the evidence which that person could give if called as a witness. Different considerations arise where payment of the living expenses of a person is requested after that person has provided a witness statement and the payment is made with a view to ensuring that that person is in a position to attend to give evidence. That is particularly so in cases where, as here, the prosecution was not in a position to compel the attendance at the trial of the witnesses who were paid. Finally, any bearing which the payments had on the witnesses' credit could have been explored in cross-examination at the trial, debated in address, and, if appropriate, referred to in the summing up. Deportation of the appellant

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,

Full text does not contain this section.