Moti v The Queen

[2011] HCATrans 193

[2011] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B19 of 2011

B e t w e e n -

JULIAN RONALD MOTI

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 4 AUGUST 2011, AT 10.15 AM

(Continued from 3/8/11)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Barker.

MR BARKER:   In response to your Honour the Chief Justice’s query about the cancellation of Australian passports, it does appear that the power derives from section 22 of the Australian Passports Act, and the power seems to be an unfettered discretion under section 22(1). There are circumstances enunciated in subsection (2), but they do not limit the Minister’s discretion in subsection (1). There do not seem to be any documents in evidence relating directly to the cancellation of his Australian passport, but I think it is common ground that he was arrested in Papua New Guinea on 29 September 2006, and his Australian passport was then cancelled.

As to the certificate of identity, it would have been perfectly simple for the Solomon Islands authorities to administer, to have issued an emergency certificate for the purpose of leaving the Solomon Islands under section 10 of the law of the Solomon Islands Passports Act.  Could we hand that up to your Honours.

KIEFEL J:   Is this a matter that was put to the expert witness in the Supreme Court, Ms Bootle?

MR BARKER:   No.

KIEFEL J:   Her evidence cuts across this, does it not?  Or perhaps not cuts across it; her evidence, I think, was that Australia could not deny a request for a visa.

MR BARKER:   At the moment I am talking about the certificate of identity and she disclaimed any knowledge of Solomon Islands law on that issue.

HAYNE J:   So we are taking, somehow, some judicial notice of the law of the Solomon Islands, are we?  What are we doing?

It was not tendered in the court below, so I respectfully submit the Court can take judicial notice of it.  If not, I suppose the law of the forum is presumed to be the law of the Solomon Islands, but in my respectful submission, a practical way around it is for your Honours to take judicial notice.

KIEFEL J:   Why is this the emergency certificates under section 10 of this Act in any different position from the visa which was issued and which, you say, should only properly be issued at the request of the passport holder or the visa – the plaintiff here as the visa applicant?

FRENCH CJ:   We are talking about the Australian law here.

MR BARKER:   This could have been without Australia’s involvement.

KIEFEL J:   When we are talking about a deportation – I mean, deportations unlike extraditions are unilateral acts of countries.  We are in the realm now, are we not, of how in the diplomatic sense, when a country deports, whether or not other countries are obliged to not hinder, if not positively assist, the deportation.  Now, where do we go to to determine whether what was undertaken here was contrary to either statutory or international law?

MR BARKER:   Well, the starting point is the illegality of the process and the certificate of identity, or the document of identity was issued pursuant to a scheme which was illegal.  It demonstrates Australia’s involvement in the illegality of the deportation.

KIEFEL J:   You are saying then that the visa or certificate of identity should have been withheld, but that assumes that in these matters that is something that would normally be done.

MR BARKER:   Your Honour, this was something which was a decision of the Australian authorities in the process of getting this man not only out of the Solomon Islands but into Australia.

KIEFEL J:   I appreciate that, but there are more matters at play potentially and that is what we do not necessarily know about in relation to these matters.  There are international relations between countries and there was expert evidence in this case that Australia was not in a position to deny a request.  Whether or not there were other aspects of taking part in ‑ ‑ ‑

MR BARKER:   But as I understand the evidence, there is no evidence of a request.  There is evidence of a voluntary assumption of – there is evidence of a voluntary issuing of the certificate of identity and the visas, but one cannot divorce that from the illegality of the whole process. 

KIEFEL J:   You have taken us yesterday to quite an extent to the original evidence.  You have not, except for an absence of a finding, as I can recall, indicated or identified where in Justice Mullins’ reasons or findings of fact there are errors.  Now, can you take us to her Honour’s findings about the issuing of the certificate of identity or visas and indicate to us where the various error or an absence of a finding.

MR BARKER:   I thought I did take your Honours to this, but – at volume 4, page1619, paragraph [40], she recounts the history of the RAMSI Treaty.  She said:

The communications between representatives of the Australian Government and representatives of the Solomon Islands Government about the removal of the applicant from Solomon Islands must be analysed as dealings between sovereign nations.  This was the approach of Ms Bootle who delivered the provisional arrest request –

Then ‑ ‑ ‑

KIEFEL J:   I think there is reference to the issuing of the document of identity in paragraph [31] on page 1615 of her Honour’s reasons.

MR BARKER:   Yes.

KIEFEL J:   The business stay visas for the officers accompanying I think appears in paragraph [17] on page 1612.  That was on the application of those officers who attended the Commission, but the document of identity I think appears at paragraph [31].

MR BARKER:   That is right.

KIEFEL J:   Is that the only finding about the issuance of the document of identity?

MR BARKER:   I think that is right, your Honour.

KIEFEL J:   Was Ms Bootle asked about it?

MR BARKER:   Yes.  Her evidence was – and I think I took you to this yesterday:

it would be extraordinary not to give a Solomon Islands Government official a visa upon request.

That is at paragraph [17] of her judgment at 1612.

KIEFEL J:   Is that referring to the business short stay visas for the accompanying officers?

MR BARKER:   Yes.

KIEFEL J:   What about the document of identity?  I mean, one wonders whether this is what happens when there is a deportation and the country deporting asks for a document of identity from the country to which the deportation is to occur.

MR BARKER:   The reference to that is at paragraph [31], as your Honour said:

The Commission had issued a Document of Identity for the applicant’s travel to Australia and Ms Bootle had noted in a cable (exhibit 37) that Mr Bond would pass the document to the Solomon Islands Director of Immigration . . . At some stage Mr Bond must have carried out the task of passing the applicant’s Document of Identity to either Deputy Commissioner Marshall or another official ‑ ‑ ‑

FRENCH CJ:   Now, the statutory framework for that, if it be based on the Passports Act ‑ ‑ ‑

MR BARKER:   Australian Passports Act?

FRENCH CJ:   Yes, the Australian Passports Act, section 9 provides that “The Minister may” issue travel related documents “of a kind specified in a Minister’s determination”.

MR BARKER:   Yes.

FRENCH CJ:   There is a Minister’s determination which provides for the issue of documents of identity to an Australian citizen to whom the issue of an Australian passport is unnecessary or undesirable.

MR BARKER:   Yes.

FRENCH CJ:   That is distinct from a certificate of identity which is issued to non‑Australian citizens about to leave Australia.

MR BARKER:   Yes.

FRENCH CJ:   So, that is the other end – that is the reverse.  So, if we are within the statutory framework, then we are looking at something which requires an application by, or on behalf of, a person and in the circumstances specified in the determination, but the impression I get is that this was not explored.

MR BARKER:   No, it was not, but it is very relevant.  There was no application – well, when I say it was not explored, a substantial part of the case was an examination of why these documents were issued and what their validity was, having regard to the illegality surrounding the whole ‑ ‑ ‑

FRENCH CJ:   The statutory or other basis for their issue was not explored, is that right?

MR BARKER:   No.

HAYNE J:   The illegality of which you complain centrally in this case is removal of Mr Moti without power?

MR BARKER:   Yes.

HAYNE J:   And removal was without power because a time had not elapsed?

MR BARKER:   Yes, and it was also ‑ ‑ ‑

HAYNE J:   Now, how does the issue of the documents show, or assist in showing, connivance not at removal but at removal before time expired?

MR BARKER:   Because the documents were issued to accommodate the plan to put him straight on an aeroplane after arrest so that the visas would be there for the two law enforcement officers, a certificate of identity would be there for him, and all that would be available immediately upon arrest.  That is what we say is the direct connivance of the Australian Government in this process.

HAYNE J:   So, your proposition has to be, I think, that knowing that Solomon Islands Government intends to deport without allowing time to expire the issuing of documents should have been withheld.

MR BARKER:   Yes.

HAYNE J:   And should have been withheld for how long?  Why?

MR BARKER:   Should not have been issued at all.

HAYNE J:   Ever?

MR BARKER:   No.  The visas were there for two people to keep him in custody, which was unlawful.

HAYNE J:   I understand that, but it becomes then that the Australian authorities should form a judgment about the lawfulness of the conduct of the Solomon Islands authorities and having formed that judgment, should act accordingly in the issue of the documents.  Is that the point?

MR BARKER:   Yes, your Honour.  They knew of the illegality.  I will take us to some more evidence on that, but the document of identification ‑ ‑ ‑

CRENNAN J:   Well, another way of approaching it might be to suggest that the certificate of identity as a piece of conduct was not itself unlawful, but you are using it as evidence of some procuring or aiding or influencing the hasty, you call it unlawful, deportation which amounts to a serious failure to adhere to the rule of law with regard to producing Mr Moti for prosecution in Australia.  But I am distinguishing there between a characterisation of the issuing of the certificate of identity as to whether it is lawful or unlawful.  You seem to be suggesting it is unlawful because the lawful course of conduct would have been to withhold that certificate.

MR BARKER:   Having regard to an Australian knowledge of the illegality.  We are not saying that Australia could not issue such a document in ‑ ‑ ‑

GUMMOW J:   You have to look closely at section 9(1). It says, “on application by or on behalf of a person . . . issue the person”.

MR BARKER:   Yes.

CRENNAN J:   Which is a different basis, you see, from the one you are relying on.

MR BARKER:   Just going to the section again, subsection (3)(b) required a payment of an applicable fee and section 10 required the Minister to be “satisfied of the identity of the person”.  There was no evidence about that.

KIEFEL J:   But that leaves us with the question of deportation where it is hardly likely that a person is going to apply for a visa to allow themselves to be deported.  Some other mechanism must be in operation and it does not look as if it is statutory.  We just do not know what it is, but something must occur.

BELL J:   For my part, it is not clear that section 10(1) of the Solomon Islands legislation is relevant.  There is no suggestion that the passport of Mr Moti had been lost, misplaced, damaged or stolen in the Solomon Islands.

MR BARKER:   No, but that, of course, is followed by all that the circumstances so require.

BELL J:   But it seems to be directed to a different issue, Mr Barker, which leaves us still unclear about the mechanism.

MR BARKER:   Yes. We raise it because the certificate of identity was not necessary for Mr Moti to be deported. It was necessary for him to enter Australia. He could have been deported with a certificate under section 9 of their Act which would overcome the problem of section 12 which required a passport to leave or enter the Solomon Islands.

BELL J:   A carrier would not accept a person for travel without some form of travel document.

MR BARKER:   Exactly, and that is why they could have given him one from the Solomon Islands because ‑ ‑ ‑

BELL J:   That is not apparent from the ‑ ‑ ‑

MR BARKER:   Your Honour, I am probably being tediously repetitive in all this, but the document of identity was not necessary for Moti to be deported.  It was necessary for him to enter Australia and it was issued in the full knowledge that it would be misused.

KIEFEL J:   It might not have been necessary – as Justice Bell points out, it would have been necessary if he had boarded a commercial airline; the carrier would have required it.  It may not have been necessary if Australia had chartered a flight, but Australia had refused to do so.

MR BARKER:   Yes.

KIEFEL J:   That is not evidence of connivance.

MR BARKER:   No, it is not, it is neutral.  Again, “This is what you will do”, they say.  “You will arrest him, take him straight to the airport, make sure he does not have access to a lawyer, put him on an aeroplane, send him to Australia to be arrested”, and the certificate of identity will allow him to enter Australia for the purpose of being arrested.

KIEFEL J:   That is the conclusion you wish us to draw.

MR BARKER:   Yes, your Honour.  It is the only, with respect ‑ ‑ ‑

KIEFEL J:   May I ask you generally in relation to the process that we were undertaking yesterday going to the evidence, apart from the lack of a finding about what Justice Mullins described as “a casual conversation” at paragraph [27] at the top of page 1615 to which you took us, are there any findings of fact made by her Honour which you say are incorrect or are there any critical omissions of findings of fact, that is to say, before we embark upon a complete review of the evidence, which seemed to be the process we were undertaking yesterday, I would like to know for what purpose we are doing that because it is not clear to me that you are actually alleging, or contending, I should say, that her Honour was in error in her findings of fact?

MR BARKER:   She made no reference at all to the passing of the legal advice from Mr Bond to Mr Marshall.

KIEFEL J:   I am sorry, the legal advice from Mr Bond to Mr Marshall?

MR BARKER:   Yes, knowing it was wrong.  She was wrong, we submit, in not holding the travel documents were evidence of connivance or collusion, and that is in paragraph [45].  She was wrong in holding there was no act or involvement of the Australian Government in the deportation.

KIEFEL J:   They are conclusions rather than findings of fact.  I am more interested in her Honour’s chronology of events as found.

MR BARKER:   No, the chronology is substantially right, but what was wrong with it all was that she did not examine, as she should have, the legality of the activities of the officials of the Solomon Islands.

KIEFEL J:   I understand that to be your argument.  I was just a little confused about the process we were undertaking yesterday, whether or not it was for emphasis or whether or not it was suggesting that we need to review the evidence for ourselves. 

MR BARKER:   No, your Honour.  The central point of the argument about the disguised rendition is, firstly, the argument offered by the Crown about the act of state and we say that just does not apply and the matter should have been looked at carefully.  The deportation being illegal; the only way it can be proved is by lifting the lid, forgetting about the act of state and looking at the matters as they actually happened, whether they were in the Solomon Islands or elsewhere.  So that is the central issue in the deportation issue.

FRENCH CJ:   What do you say as to her Honour’s finding of fact at [42] on page 1620 that Mr Bond’s enthusiasm, and that of his colleagues, did not result in Mr Bond taking any role in the events on Solomon Islands that resulted in the applicant’s deportation other than as an observer who was keeping the commission and the AFP informed of events?  What do you say to that?

MR BARKER:   We say it is wrong because the evidence is to the contrary. 

HAYNE J:   Where in the notice of appeal do we find a challenge to paragraph [50] in the Court of Appeal?  We do not, I think.

MR BARKER:   No.

HAYNE J:   Is that not the territory in which we ought to be?  If you want to challenge what is said in paragraph [50] of the Court of Appeal, you need to know what the challenge is, what the finding is that you assert should have been made by the Court of Appeal and we then sit here to do what the Court of Appeal should have done.

GUMMOW J:   Looking at the first sentence of paragraph [50] of the Court of Appeal, it uses the expression:

active involvement in procuring deportation –

That notion might be compared with what Lord Bingham said in the case of Westfallen (1998) 1 WLR 652 at 665. His Lordship said:

The question in each of these cases is whether it appears that the police or the prosecuting authorities –

that would be here, the Australian authorities –

have acted illegally –

that would be under Australian law –

or procured or connived at unlawful procedures or violated international law or the domestic law of foreign states or abused their powers in a way that should lead this court to stay the proceedings –

Then later he asks himself the question, is there anything to suggest that the British authorities procured or influenced the decision, which is a somewhat different formulation of that upon which the Court of Appeal was proceeding.  Now, if you want to challenge that basis on which the Court of Appeal proceeded, you have to tell us.

MR BARKER:   Well, the way it went in the Court of Appeal is very much open to challenge, and I am looking at 1655 where her Honour Justice Holmes firstly made findings that there was no connivance, then said she would not look at the actions of the Solomon Island Government.  The argument we are putting, in my submission, is entirely consistent with the cases we have cited.  That is, that the conduct of the sovereign government is not so protected, and if there is involvement of Australians the actions – the conduct of the sovereign government is open to examination to determine the extent of the involvement of the Australians.  You cannot say, without looking at it in depth, you cannot say there was no Australian involvement therefore we cannot look at the actions of the Solomon Islands Government, it is putting the cart before the horse.

KIEFEL J:   You have to identify the conduct and then say whether it was to knowingly procure – whether it went beyond mere knowledge as the Court of Appeal suggested and it was attempting to influence or procure the outcome rather than standing by.  Standing by does not seem to be sufficient, at least under the English authorities; that is, not resisting a course of action that the Solomon Islands had stated its intention to take.  That may not be sufficient under the judgment of Lord Bingham to which Justice Gummow has referred.

MR BARKER:   It would be, we submit, if it amounted to an encouragement.

KIEFEL J:   Tacit approval, that does not seem to be – that is a negative response, it is a standing by you say is sufficient.

MR BARKER:   Lending support to the process, but this went beyond that, this went into active assistance, and that is the importance of the travel documents.

FRENCH CJ:   Well, the factual frame which you seek to set in ground 2(2) of your notice of appeal is concurrence or connivance of the executive authorities in disregard of extradition procedures and in breach of his rights under the Deportation Act, et cetera.

MR BARKER:   Yes.

FRENCH CJ:   Does that import a challenge to what the Court of Appeal said at paragraph [50]?

MR BARKER:   Yes, your Honour.  It was not argued by the appellant in the court below that the matter was a question of mere knowledge.  It was argued to the contrary.  I took you to this yesterday, but the findings in paragraph [50] we say were substantially wrong:

The evidence here was that the Australian Government was at all times seeking extradition –

It was not –

It rigorously abstained from expressing any view –

That is a finding which should not have been made because it is contrary to the evidence –

communication of flight details to police in Brisbane and the arrest of the respondent on his arrival did not amount to giving any aid in the deportation; it was the appropriate conduct of a police force in regard to the apprehension of a person for whom there was an arrest warrant extant.

The deportation was contrary to law.  We should not have connived in it –

The issuing of a travel document for the respondent could hardly have been refused in circumstances where he was an Australian citizen.

It is not as though he sought the travel document.  He did not say, “Please give me a travel document so I can go to Brisbane to be arrested.”  It was forced on him.

BELL J:   In any event, you say even if there exists some power to issue a travel document absent a request from the individual, the handing over of the travel document on 27 December in circumstances in which Federal Agent Bond was aware of the matters disclosed in the diary note that you took us to yesterday is evidence of participation or support?

MR BARKER:   Yes, because they knew it was going to be misused and form part of an illegal process.  There is some other evidence about that I would like to take you to.  The Australians knew by 17 December that a new government, which was then likely, would deport Moti.  We get that in volume 4 at page 1326.  It is a cable dated 17 December from Graeme Wilson of DFAT to Lorraine Kershaw also of DFAT.  It is written by Peter Hooton who was the head of mission.  I am sorry, the document I am looking at is a response to the email of 1327 but it is sufficient that I take your Honours to it:

Graeme

As you will be aware from our reporting, and from other sources, a Sikua‑led government seems likely to deport Julian Moti as soon as they can.  While the Deportation Act suggests this may take a bit longer than they expect (the Minister has discretion to deport but not before the matter has been considered in court), a determined government could still have Moti on a plane pretty quickly.  I know this is not necessarily our preferred outcome but I would still hope we can avoid making a fuss.  We all want him gone after all and it would be a shame to risk an early misunderstanding with the new government.

Then if you go from there to volume 3, page 1219, we have the email which I took you to yesterday.

KIEFEL J:   What page was that, Mr Barker, I am sorry?

MR BARKER:   Page 1219.  There is an email from Mr Bond of 24 December:

I think it’s still too early to celebrate just yet.  The Act clearly sets out that the deportee has seven days to appeal the ‘Order’.  The view of the PS in the sitrep that he had his appeal on Saturday is not correct as it was not an appeal against a deportation order –

So that is on 24 December.  If you then go to Mr Bond’s diary in volume 3.  We are at a stage now where they knew that this deportation would be illegal because they knew about the seven‑day provision.  So if you go to the diary at page 1130, it was obviously written after the meeting with Mr Wickham.  This is 24 December.  Near the top of the page:

Jeff Wickham – P.S. Immigration. (Commerce).

- Min to sign deportation order that afternoon

- arrange visa. – Billy. G – Passport.  Immigration officer.

That is the man who was one of the two who accompanied Moti.  Then he says:

- Amendment to Deport Act – 1999 – no requirement for Magistrate.

7 days to appeal the deportation.

So he is then talking about visas in the knowledge that the process will be illegal.  He knows that the proposition is to deny Moti his undoubted rights.  Then if you go to page 1131, this is, I think, the 25th, about two‑thirds of the way down:

Wilson H Rano – solicitor for Moti (Pacific Lawyers) “execution of the order for deportation of the Applicant be stayed pending the hearing & determination by the Court of Appeal –

This magistrate’s injunction was enforced on the 27th, as your Honours know from the schedule, so Mr Bond knew about it.  Mr Rano had apparently produced the order that produced the judgment to him.  That refers to the magistrate’s order at volume 2, page 497, which was made on 25 December 2007, and the primary order was that:

execution of the order for the deportation of the [Appellant] be stayed pending the hearing and determination by the Court of Appeal of Solomon Islands of the [Appellant’s] appeal.

That, of course, was in force on 27 December.  The director applied to set it aside at page 503.

FRENCH CJ:   The civil appeal case that is referred to there related to what?

MR BARKER:   Sorry, referred to where, your Honour?

FRENCH CJ:   In the magistrate’s order.

MR BARKER:   The magistrate’s order, Gabriel Suri representing the Minister:

I told the Counsel for the Immigration that because he requested on urgent Exparte hearing –

his application would be heard on 27 December.

FRENCH CJ:   The appeal in Civil Appeal Case No 37 of 2007, what is that a reference to, do you know?

MR BARKER:   That is a reference to the Minister’s appeal.

FRENCH CJ:   No, “the Applicant’s appeal”, it is called.

MR BARKER:   Sorry, yes, the applicant’s appeal for an interim order staying the execution of the deportation order.  The Minister then appealed against that and the magistrate adjourned the hearing until 4 January and on the same day the Minister applied to have the order set aside, Moti was arrested, which was the subject of severe criticism by the magistrate at page 505.  So that itself was an order which should have prevented, had it been observed by the government of the Solomon Islands – would have prevented the deportation until Mr Moti had had time to argue his appeal against the dismissal of his application by Justice Palmer.  There are two other documents which seem to encapsulate the attitude of the Australian Government to Moti’s deportation.

It is the one I just took you to, that is that “a Sikua‑led government seems likely to deport” him and we do not want to make a fuss.  Then if you go to 3, 945, which is an email or a cable dated 27 December at 3.11 pm from someone in DFAT to someone else in DFAT, Gary Quinlan, with a copy to Patrick Cole:

Quick update –

Now, they are watching what is happening to Moti –

Unfortunately it’s turned into a bit of a shambles at the Moti residence.  Djokovic is apparently there protecting Moti – not sure with what authority – pulling out legal documents/court order etc. (Interim court order referred to in cable attached) –

Now, that is the order which I just took your Honours to –

Local police have gone all limp – despite previous stated intentions to push him on the plane regardless – they dont seem to be prepared to remove him foreably.  So, they’re still at the house.  Meanwhile, Jeffrey Wickham claims to have “stopped” the plane from departing – which it should be doing right now (although Solair tell us they are boarding for scheduled departure)....

And her evidence – that is Ms Bootle’s evidence – was she got that information from Mr Bond, and she was the signatory to material that I have just read to you.  At 947, events have moved on a bit.  Ms Bootle sends another cable, this time at 4.10:

They’ve got him.  The plane is still waiting – being held by Deputy Police Commissioner Marshall and Jeffrey Wickham (PS Commerce).  A convoy of police cars just went past with sirens going on the way to the airport.  Robson Djokovic was up at Moti’s there in a Government car!

So she is watching the progress of these spectacular events and reporting on them as they happen.  There is just one other entry I wanted to take you to in Mr Bond’s diary at page 1132.  It follows on from the passage about Mr Rano and the order, and it is at the top of page 1132:

investigation re flt cancel?

forced on to plane on Thursday.

That is prospective, and Thursday will be two days after that.  This is because the flight was cancelled.  He is:

concerned about Khan’s interference.

There is very little evidence just about what that really means but it is not material for present purposes.  What is material is that Mr Bond knew full well that Mr Moti was going to be forced on to the plane on Thursday in such a way that he would lose all his rights.

Your Honours, that is really all I want to put to the Court in respect of ground 2.  May I then go to ground 1.  Ground 1 is dealt with in some detail in our written submissions and you have a schedule of the chronology of events relating to witness payments which I hope will assist in keeping my submissions short.  The primary judge found the payments were an affront to the public conscience because they far exceeded what were normal witness payments.  We say the payments were not only unconscionable but they were illegal.  The basic submission in all this is that her Honour’s discretion was properly exercised and no error has been demonstrated.  It was said by Justice Holmes at page 1652, paragraph [38]:

There were, in my respectful view, two crucial errors in the learned primary judge’s reasoning:  the failure to recognise that the questioned payments were not designed to, and did not, procure evidence from the prosecution witnesses; and the failure to pay sufficient regard to the fact that the payments made, while beyond existing guidelines, were not illegal.  The conclusion that the making of the payments was such as to bring the administration of justice into disrepute if the prosecution was allowed to proceed was not, in my view, open on the facts. 

So the primary question is, were they right in holding that her Honour was in error?  In my submission, they were not, because the exercise of her discretion was well supported by the evidence.  Quite clearly, her Honour turned her mind to the question of illegality.  She said the payments were an affront to the public conscience and, quite clearly, she turned her mind to the significance of the payments being made to witnesses after they had made statements and were not made in response to a request for statements to assist the prosecution.  She dealt with all those things and it was just wrong, we submit, to find that her discretion had somehow miscarried.

The payments made were very substantial, payments to the complainant –and we are talking about the period 2007 to 2009.  Payments to the complainant were $67,576 and to her family $81,639, and your Honours will find that at volume 4, pages 1577 and 1578.  Her Honour found, and we say with justification, that these payments were made to keep these people available as witnesses.  They were not made as ordinary witnesses’ expenses.  They were made because they wanted to keep the witnesses on side.  In fact, I think, your Honour used the expression “buying the evidence”. 

Let me take you firstly to the question of illegality.  It is hard to argue this without going to some chronological survey of the evidence, but if I could put it briefly, the investigation into the Vanuatu events began in 2006.  That was the first contact with the complainant.  She was then aged 22.  She lived in Vanuatu with her father and mother and brother.  Federal police saw that as essential in the case.  She came to Australia in 2006 and there were thereafter many contacts between her and the Australian Federal Police.  The relationship was marked by demands by [the complainant] and her family for financial assistance if they were to stay on side and to help with the prosecution.  She made at least seven threats to withdraw her evidence.  While in Australia she was supported in Brisbane by the AFP. 

We come to the first request by her father for money.  That was at volume 2 page 695 on 13 June 2006.  The report by the Federal Police Officer Macdonald, they had been to Vanuatu, very difficult in locating the victim:

She is currently considering whether she wishes AFP to continue with obtaining evidence owing to the following complications –

which are set out in the case notes.  What they amounted to is that the family was in grave financial problems, and that is reinforced in volume 4, page 1381.  An approach was made by the father to the federal police in Vanuatu.  He said:

[The father] made the following statements:

1.His family has no money and has no access to credit for food for his family.

2.He owes about 900,000.00 vatu in unpaid rent on two houses . . . 

3. . . . owes about 3.2 million vatu to creditors . . . 

4.The Julian Moti saga has affected his credibility in business. 

At the end of page 1382:

[The father] and his family are requesting:

1.Immediate support in the form of finance to purchase food and supplies for his family needs.

2.That all eleven members of his family (four adults & seven children) be transported to Australia for the duration of the Court proceedings at which four adult family members are to give witness evidence in the Moti matter –

At volume 3, page 1246 we have evidence of an outburst by [the complainant].  On 1 February 2007 she said in the third passage there:

the Australian Government had done nothing to address the Moti situation (prosecution of Moti) for 8 years and then all of a sudden they raise this matter and try to charge him but they won?t do a small thing like make a special consideration for her husband?s visa.

She said she did not want to proceed with the matter – that is in the next passage – but she would “consider her decision further”.  This very uneasy relationship continued with the federal police.  There is evidence that they saw her as being absolutely necessary for the prosecution.  Volume 3, page 1248 is a federal police document dated 13 March 2007:

The AFP and DPP are sharing the cost of supporting the victim in the Julian Moti matter whilst she is in Brisbane.  She has been here for the past couple of months and has been porovided with accommodation and financial support (Centrelink payments).  The victim is here in Brisbane as she believes she is at risk if she returns to Vanuatu.  Bottom line is that we have to keep her on side because without her statement there is no case against Moti.

She demanded money on 24 December 2007.  That is at 1254 in volume 3.  She said she wanted – I am sorry, this is an email of 4 January 2008 from Agent Macdonald to somebody else in the AFP, Geoff Swift:

The first indication of [complainant] making demands came during telephone conversations and SMS messages . . . 

[The complainant] stated:

·she wanted protection for the family – not physical protection, financial protection.  [Complainant] was advised that we could reimburse her for maintaining telephone contact with us over the last 10 months, about $400.  [Complainant] said the family needed 2 million Vatu (about AUD25,000).

In telephone conversations and SMS messages on Wednesday 26 December 2007 [complainant] said:

·unless we can give her the protection she wanted the family will find refuge in France and she must have an answer today.

On Friday 28 December [complainant] said:

·If Australia wants to continue with the case they have to consider what she wants from them.

·If Australia won’t assist financially they have to bring her family to Australia until everything is complete and her name is cleared.

·If Australia wants her to go ahead with the case they have to help her and her family . . . 

·A French lawyer has to be present to assist with legal interpretation –

and so on.  On page 1256:

·If her requests are not met she will approach the French authorities to handle the issue and will ask the Australian authorities to stop bothering her and she will tell her government about the treatment she got from the Australian government.

On 3 January she spoke to Macdonald and said:

·That unless the family is brought to Australia she will not participate further and will go to the ABC with her story about how the Australian government has used her to get Moti then dumped her.

On the same date Lindsay reported that he had been approached by the father who said:

·They wanted immediate financial support –

and all the family “brought to Australia”.

BELL J:   Mr Barker, can I raise this with you?  It is common enough in the background to the prosecution of offences that witnesses may receive financial assistance from the prosecuting authorities, and indeed that members of their family may through witness protection or some other arrangement.  As I understand it, the primary judge and the Court of Appeal – I do not think there was a distinction between them in concluding that the payments were not unlawful; that is, they had been authorised in accordance with the financial management procedures within the line of command in the AFP.  What was wrong with the Court of Appeal’s conclusion that the primary judge gave insufficient consideration to that matter in determining to stay proceedings permanently, an exceptional remedy, in circumstances in which it was open at the trial to explore all these matters to raise consideration of the motives of the complainant and members of her family called as witnesses?

MR BARKER:   I am just looking for the notes I have made.  It is necessary, your Honours, to examine that issue not in the light of payments ordinarily made to witnesses because they are ordinarily made only for sustenance, and one must examine the evidence in relation to the threats which were being made to the federal police which would have brought the prosecution undone.

BELL J:   If those threats can be explored at trial, why does one employ the exceptional remedy of the stay?

MR BARKER:   It is the sort of abuse that is calculated to bring the court’s processes into disrepute, because the ‑ ‑ ‑

HAYNE J:   Why, when it is all to be explored at trial?  Why does that bring the processes of the court into disrepute if these things can all be put to the witnesses and a jury work out what significance, if any, they attach to these facts?

MR BARKER:   Because the prosecution is proceeding and is made possible by keeping witnesses onside by paying them very considerable amounts of money.

HAYNE J:   No doubt at trial much may be made of that.

MR BARKER:   Yes, I appreciate that, your Honour, but our argument is – and her Honour accepted it – that these payments were so excessive in the circumstances and so substantially remote from payment of mere sustenance to witnesses, mere witness payments, that a right thinking person looking at the history of this prosecution and this evidence is going to say, “This court is going to try a man on evidence for which the police have paid,” and that should not happen.  That simply should not happen, with respect.  That is what her Honour found.  She said, at page 1626, and this is part of our argument, that these payments were in fact illegal.

FRENCH CJ:   There was not any such conclusion drawn by the primary judge, was there?

MR BARKER:   She did not use that expression, your Honour.

FRENCH CJ:   Well, she did not make any finding, did she?  She referred to the relevant statutes.

MR BARKER:   She made some findings at paragraph [61] on page 1626.  She there recited the payments.  She said:

Reference was made in the email to “[t]he proposal to provide witness support is based on AFP practice in previous TSETT matters.”

That is, Transnational Sexual Exploitation Team.  But the only evidence about that was from Ms Macdonald, who –

did not believe that the guidelines for the victims of prostitution trafficking extended to providing payments for witnesses other than the victim.

So there were no guidelines appropriate to this case.  The guidelines normally attaching to TSETT matters did not authorise payments to witnesses other than complainants.  The payments were contrary to legal advice given by the DPP, which said that they had to be matters of mere sustenance.  I will just find that for you.  Page 1624, paragraph [57]:

After the AFP obtained independent legal advice (which was the subject of a claim for legal professional privilege in this proceeding), the AFP proposed from February 2008 to provide witness support to the complainant, her parents and her brother to meet their living costs.  Ms Macdonald was not involved in working out the quantum of the payments to the complainant and her family members or in making the decision to make those payments, but she did say that the decision was made by someone at a higher level and on the basis of independent legal advice from senior counsel that the payments should be for “sustenance only” . . . advice was given that they were to be subsistence payments only and not to exceed $6725 per month ‑ ‑ ‑

FRENCH CJ:   I was asking whether her Honour made a finding of illegality.  I thought she did not.

MR BARKER:   She did not, your Honour, but she took all those matters into account and came to the view that the payments were an affront to the public conscience.  At page 1633 ‑ ‑ ‑

FRENCH CJ:   I am familiar with that passage.

MR BARKER:   Yes, paragraph [87].  Her reasoning as per the abuse point is at page 1634, paragraph [88]:

The assumption by the AFP of the responsibility of providing total living support for the complainant’s parents, her brother and their dependants in Vanuatu brings the administration of the justice system into disrepute.

Further down the page –

The only inference that is reasonably open about the AFP’s decision making in relation to the payments to the witnesses in Vanuatu is that it is directed at the continuation of the prosecution against the applicant.  The policy consideration raised by the conduct of the AFP ‑ ‑ ‑

FRENCH CJ:   That normative characterisation, that is to say, the payments were such as to bring the administration of justice into disrepute, was what was said in the Court of Appeal not to be open on the facts.

MR BARKER:   Yes.  We submit that finding is just wrong, that her Honour having carefully weighed the factors in issue came to the view that the payments were an affront to the public conscience and were a degradation of the jurisdiction of the Court.

FRENCH CJ:   Well, your argument runs, does it, that (a) the characterisation was open, and (b) her Honour’s adoption of that characterisation which informed the exercise of her discretion to stay was not informed by reviewable error?

MR BARKER:   Yes, your Honour, having regard to the oft cited case of R v House.  There is with the statues the Financial Transactions Act and regulation, which the DPP have purported to rely upon in justifying the payments, but we submit that if the section relied upon – that is section 44 of the Financial Management and Accountability Act ‑ ‑ ‑

FRENCH CJ:   Now, was that relied upon for anything other than legality?

MR BARKER:   No.  Section 44 and the regulation, regulation 9:

An approver must not approve a proposal . . . unless the approver is satisfied –

that giving effect to the spending proposal would be a –

proper use of the Commonwealth resources –

Commonwealth resources is the subject of section 44 of the Act.  We submit that in the absence of any guidelines it was just not open to the police to throw money around as they did for the purpose of keeping witnesses onside for the purpose of prosecuting Mr Moti.  It should not have happened and the stay should be reinstated, as found by Justice Mullins.  Your Honours, I think the material you already have saves you from further submissions by me, except in reply.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Barker.  Yes, Mr Agius.

MR AGIUS:   If it pleases the Court, we propose to adopt the same approach, that is to take the matters in the same order in which my learned friend did and deal firstly with the question of the deportation to Australia.  Your Honours, our primary position in relation to this is that Australia was not a party to any unlawful conduct and nor did it connive in any unlawful conduct.  Australia was not a party to the decision to deport the appellant, that was entirely a decision made by the Solomon Islands Government.  Australia was – and there is some evidence of this and I can shortly take the Court to it – Australia was at all material times pressing for extradition, and it pressed for extradition even after it was told that a preference of the Solomon Islands Government was deportation.

It is our further submission that nothing that any of the Australian authorities did can satisfy the test as laid down in the Court of Appeal in the matter of Levinge, which test has been approved since then, and I want to take the Court to some short evidence dealing with that aspect.

We further submit that her Honour Justice Mullins was correct in applying the doctrine of state from Heinemann, and I will come to that, but, in a sense, we say that is not a matter that should bother this Court greatly because her Honour’s reliance upon Heinemann was not relied upon by her to avoid any discussion or any findings about what happened in the Solomon Islands.  It did not prevent her Honour from making any findings about what the Solomon Islands authorities did at any particular time.  It did not prevent her from having cognisance of the Deportation Act.  It did not prevent her from having regard to the orders that had been made by the magistrate.  It prevented her from doing only one thing and, in our respectful submission, that restraint was of no moment when her Honour came to deal with this issue.  That restraint was to prevent her from finding that what the Solomon Islands Government or authorities did was invalid.  But she still made findings of fact about what they did.  She simply did not add the appellation of invalidity and for the purposes of this case, we say that is neither here nor there because of ‑ ‑ ‑

HAYNE J:   Is not the first step to inquire whether removal of Mr Moti was a removal with power or without?

MR AGIUS:   Well, your Honour, no.  We would say the first step is to inquire and that the material step is, did any Australian authority connive in any denial of rights of Mr Moti.

HAYNE J:   You can only work that out if you know what his rights are.

CRENNAN J:   Would you deny this proposition, that the conduct to which Mr Barker has taken us facilitates the deportation to Australia in breach of Mr Moti’s rights under the Deportation Act and under the court order?

MR AGIUS:   No.

CRENNAN J:   So you accept that proposition.  Would that lead you then to focus not necessarily on acts of state, but to ask the question whether or not that shows a failure on behalf of the Australian authorities to adhere to the rule of law in terms of producing Mr Moti in Australia for the purposes of prosecution?

MR AGIUS:   Well, Australia had no role in the decision to produce Mr Moti into Australia.  That was a decision of the Solomon Islands Government.

CRENNAN J:   Yes, but you have accepted that the conduct of Australian officials facilitated the deportation to Australia in breach of the rights under the Deportation Act and under the court order.

MR AGIUS:   I did not accept that, your Honour.  I said no, we do no accept that.  We do not accept that anything that Australia ‑ ‑ ‑

CRENNAN J:   I asked you would you deny the propositions, so I think there was just a miscommunication there.

MR AGIUS:   I am sorry your Honour.  It may be my fault.  I did not pick up that negative in your Honour’s question.  But we do not accept that anything that Australia did facilitated any denial of Mr Moti’s rights and to the extent to which anything that Australia did impacted upon those rights did not amount to a connivance in the prejudice that he suffered by any rights that were denied him.  We submit that it is not sufficient to demonstrate anything less than connivance or that Australia was a party and a party in the real sense of being a procurer of the action.  That is the effect of the law as we submit it is, that it is not enough ‑ ‑ ‑

CRENNAN J:   You can aid or facilitate or influence without procuring.

MR AGIUS:   Yes, and aiding is not enough, in our respectful submission.  We submit that there is no evidence that anything Australia did influenced the Solomon Islands decision, either to deport him or to deport him on the day, or to deport him in circumstances where he was effectively a right to make any appeal that he wanted to make to the Solomon Islands courts.

HAYNE J:   Did not the conduct of Federal Agent Bond on the day of the removal of Mr Moti from the Solomon Islands assist his removal from that country on that day on that aircraft?

MR AGIUS:   No, your Honour.  Mr Moti could have been put on that plane and removed without Mr Bond doing anything.

HAYNE J:   But did Mr Bond’s conduct assist in that event occurring?

MR AGIUS:   Only if you draw the inference that whether (a) that he provided the document of identity for Mr Moti at that time and (b) without that document of identity Mr Moti could not have been placed on the plane and deported.

KIEFEL J:   Will you be able to throw any more light upon this document of identity?  This appears to be an important omission.

MR AGIUS:   Your Honour, the legality of the issue of the document of identity has never been an issue in these proceedings before yesterday.  Our submission in relation to that is that the provision of the Passports Act should be read – I will just turn it up, excuse me ‑ ‑ ‑

FRENCH CJ: Section 9, I think, we are looking at.

MR AGIUS:   It should be read in this way, “The Minister may, on application by or on behalf of a person” and “on behalf of a person” does not mean at the request of the person or with the consent of the person, and “issue the person with a document” of identity should also be read on the basis that “issue the person” means issue for the purposes of purposes related to that person.

GUMMOW J:   We know what the purposes were here.  They appear at volume 4, 1328.  The authority came from Canberra, “Post may iss D of I to Julian Moti to enable deportation to Australia”, et cetera.

MR AGIUS:   The document of identity enables deportation to Australia only in the sense that when Mr Moti presents himself at the immigration barrier at Brisbane Airport without any fuss and without any further proof as to who he is, he can be admitted.  It does not perform any other legal function so far as Australia is concerned.  It is a facultative matter for the Department of Immigration.  It saves somebody having to prove that this is Mr Julian Moti who is an Australian citizen because the document has already been issued and accompanies him.

BELL J:   Absent a travel document, would a commercial carrier have taken Mr Moti from the Solomon Islands?

MR AGIUS:   Your Honour, we would not concede that that would not have happened.  There is no evidence that he would not have been able to have been brought to Australia without a travel document.

KIEFEL J:   Does the absence of evidence on this issue leave us in this position, that there is no evidence that Australia was obliged, at the request of the Solomon Islands, to produce such a document and that we must necessarily proceed on the basis that there was a choice to be exercised and the choice was exercised with knowledge of the background concerning his appeal rights?

MR AGIUS:   Your Honour, I do not think I can resist the inference that the travel document was issued with knowledge that it was going to be used.

KIEFEL J:   No, but I am focusing upon the question of – there is nothing before us to indicate that Australia was under any form of statutory or international obligation to issue the document.  Why should we not proceed upon the basis that it was issued as a matter of the exercise of choice?

MR AGIUS:   There is evidence from Ms Bootle about the issue of a travel document.  So there is some evidence, your Honours, that it is relevant.

KIEFEL J:   I should say that in that exercise of choice there may be the collusion.

MR AGIUS:   That evidence is at volume 1, 396, at line 40:

If the High Commission had been asked for the issue of a travel document for Mr Moti to permit the Solomon Islands Government to deport him, what was your attitude at the time to refusing to issue such a travel document?--The way I was looking at it at the time was that Mr Moti had been terminated in his employment.  He had no valid permit for residing in the country.  It’s then logical that an Australian citizen would require a travel document to return to his country of citizenship.

Did you consider whether there would be any diplomatic repercussions if you had refused to issue a travel document for Mr Moti?--Yes, I think certainly that was a consideration.  Ordinarily, when a government takes those actions, we would facilitate movement of that person, as we did for example, with previous people that were moved from the country by various means by the Solomon Islands Government including our High Commissioner.  So, yes, certainly, I mean, when you get a request of that nature from the host government, you facilitate.

GUMMOW J:   But, look, this was not going to be decided in the Solomon Islands.  This was going to be decided by some communication from Canberra.

MR AGIUS:   It was decided by communication from Canberra.

GUMMOW J:   Exactly.

MR AGIUS:   Her evidence as a diplomat was that, in our respectful submission, when somebody is being deported to their country of citizenship that one acquiesces by the issue of a travel document in those circumstances.  Now, the direction came from Canberra ‑ ‑ ‑

GUMMOW J:   Not that one acquiesces, that one contacts Canberra and receives a direction.

MR AGIUS:   Yes.  But we are not denying that the direction came from Canberra or that Australia issued the travel document because of a direction from Canberra.  That is no part of the Crown’s argument.  It never has been.  The question is ‑ ‑ ‑

GUMMOW J:   It is not the Crown either, Mr Agius.  It is the Director of Public Prosecution.  We do not have the Crown here.  We do not have the Attorney‑General.  We do not have the Commonwealth.

MR AGIUS:   May it please your Honour, I will stand corrected.  We do not argue ‑ ‑ ‑

GUMMOW J:   They have chosen to stay away.

MR AGIUS:   I am sorry, your Honour.

GUMMOW J:   They have chosen to stay away.

MR AGIUS:   Yes.  We do not submit that the decision to issue the travel document was made in the Solomon Islands.  It was made in Canberra and it was issued by direction and ‑ ‑ ‑

GUMMOW J:   At what level was it made in Canberra?  What do we gather from this?

MR AGIUS:   I do not know, your Honour.  There is no evidence.  There is evidence that it came from the Department of Immigration. 

GUMMOW J:   Do we know who Mr Mark Porter was?

MR AGIUS:   I can get some instructions about that, your Honour.  So to return to Justice Kiefel’s question, there is evidence that the diplomatic practice was that if somebody was being deported to their country of citizenship and they were without a travel document that one would be issued as a matter of practice.  Now, we do not deny that Australia had a choice as to whether to issue a travel document and we do not deny that Australia, in Canberra, determined that in these circumstances a travel document would issue and we do not deny that Australia in the Solomon Islands was aware that the travel document would be used and presented by the by or on behalf of Mr Moti when he arrived at Brisbane airport.

GUMMOW J:  Now, is there any evidence of any delegation by the Minister of the power conferred by section 9 of the Passports Act which you say was exercised here?

MR AGIUS:   There was no evidence, your Honour.

GUMMOW J:   I see.

BELL J:   Is not the inference to be drawn from Ms Bootle’s evidence that the practice of which you speak is because the issue of the travel document as a matter of comity facilitates the deportation?  It is not just a question of what happens when the person turns up at the gates at Brisbane.  It is a question of how one gets the person out of the country that is arranging the deportation.  As I understand the effect of Ms Bootle’s evidence, it was that she considered there might be diplomatic ramifications if Australia did not co‑operate by providing a document that would facilitate the deportation of Mr Moti from the Solomon Islands.

MR AGIUS:   I could not dispute that, your Honour.

BELL J:   That in circumstances in which Australia knew Mr Moti did not wish to leave the Solomon Islands and wished to assert the rights that the Australian Government understood he had under the law of the Solomon Islands.

MR AGIUS:   That it was likely that he would exercise his rights in the Solomon Islands but for the fact that he was being hurriedly deported.

BELL J:   Hurriedly deported contrary to the Australian Government’s understanding of the provisions of the law of the Solomon Islands respecting deportation.

MR AGIUS:   Contrary to the understandings, yes.  Now, in our respectful submission, that does not amount to a connivance in the deprivation of Mr Moti of his rights in the way in which those words are understood in Levinge.  The authorities in relation to this are few, but the ones upon which my learned friends relied all speak of procurement.  They speak of an active involvement by what I might call the home country in obtaining a deportation as opposed to an extradition.  In Bennett and in Mullen that was the case.  There was active involvement.  In Levinge there was no active involvement but the court used the phrase “connivance”. 

Now, Australia is not conniving with the Solomon Islands to deport Mr Moti.  It had nothing to do with the booking of the flight.  It had nothing to do with the choice at the time.  It had nothing to do with any decision made by the Solomon Islands to deport him or to deport him at that time or with any decision of the Solomon Islands to deport him in such a way so that he could not exercise any right that he had if he wished to exercise it in the High Court.  In that regard, Australia stood by and left that as a determination for the Solomon Islands Government.

GUMMOW J:   It is a determination that could not have been implemented. 

MR AGIUS:   Well, your Honour, we do not accept that it could not have or would not have been implemented if Australia had not issued the travel document or if Australia had not issued the visas.  There was no evidence to that effect.

FRENCH CJ:   There is a legal question, is there not, as to position of an Australian citizen arriving without travel documentation at an Australian port or airport of entry?  What is the position of such a person?  The Migration Act is all concerned about the question of non‑citizens.  I suppose there is a question of proof of citizenship.

MR AGIUS:   Well, my only knowledge of that, your Honours, fell from his Honour Justice Gummow yesterday when he spoke of the decision of the High Court in Caledonie. 

FRENCH CJ:   This, of course, is an Australian citizen who does not want to enter Australia.

MR AGIUS:   Yes.  It is an Australian citizen who is being delivered to Australia against his will. 

FRENCH CJ:   So he is not asserting any right to enter Australia.  So none of the obligations that might relate to admitting someone expelled from another country by reason of that person’s rights arise.

MR AGIUS:   Well, your Honour, I think we could concede that it would be inconceivable that if Mr Moti had presented at Brisbane airport, assuming Australia had not issued him with a travel document, but he had been presented there by two Solomon Island officers, or even if he had been presented there by the pilot of the plane who had asked him to disembark and he did not have a travel document, it is inconceivable that he would not have been admitted into the country and that he would not have been arrested.  Australia had been trying to extradite Mr Moti for some years.  They had achieved his arrest in Papua New Guinea.  He had been released on bail and fled Papua New Guinea in breach of his bail.  He had gone to the Solomon Islands without his passport, which is why – because it was a condition that he surrender it.  His passport had been cancelled. 

It is inconsistent with the view formed by her Honour that Mr Bond was, in fact, urging Mr Akao to get Mr Moti to the airport.  In fact, Mr Bond said in his evidence, and it does not seem he was challenged on this, that it seemed unlikely to him that he would say what was attributed to him given that the plane had not even arrived in the Solomon Islands at that time.  That is even if the Court comes to review the question of the finding that was made by Justice Mullins, in our respectful submission, no occasion arises to review that finding of fact.

Yesterday as well my learned friend referred to a statement made by Mr Kalita and my friend read the passage from the statement of Mr Kalita and then took the Court to Mr Kalita’s evidence.  In his statement, as we heard yesterday, Mr Kalita had said that Mr Bond had said to him during the visa processing application “Moti must leave this country” and my learned friend read that to the Court yesterday.  I think my learned friend just missed and overlooked what happened when Mr Kalita was cross‑examined because in cross‑examination at page 54 I put to Mr Kalita that Mr Bond had never said to him that Moti must leave the country and his answer was, “Not that I remember.”  So, effectively, Mr Kalita withdrew his allegation that Mr Bond had said to him that Moti must leave the country.  I will not take the Court to it, but there was, at pages 54 and following of volume 1, a significant attack upon Mr Kalita’s credit and his admission to departmental offences which affected his assessment of his honesty.

My learned friend made the point yesterday and again today that her Honour made no finding about the fact that Mr Bond had passed to the Deputy Police Commissioner, Mr Marshall, the advice from Mr Suri.  I will not go into the detail of that, but your Honours will recall that Mr Bond was invited to and did attend a meeting on that morning and heard advice that Mr Suri had given to the Permanent Secretary of Immigration about the legality of what was proposed in respect of Mr Moti, and it is true that her Honour made no specific finding about Mr Bond passing that advice to Mr Marshall.  However – and we have dealt with this in our written submissions – the fact is that Mr Marshall had received that advice, otherwise there was no evidence, nor did Mr Bond admit that his purpose in passing the information to Mr Marshall was, in effect, to engage in the process of the deportation.  It was just conversation between Mr Bond and Mr Marshall in circumstances where Mr Marshall already had the advice.

It is not to the point, in our respectful submission, to criticise Mr Bond for not challenging Mr Suri, the legal adviser to the Solomon

Islands Government, about the accuracy of his advice.  In fact, the fact that Mr Bond never challenged the accuracy of that advice is consistent with Australia’s position and the position for which we have contended today, which was not to interfere in the internal government of the Solomon Islands.  It was a respect for the sovereignty of the Solomon Islands.  It was for the Solomon Islands to obtain their own legal advice in relation to their own position and not for Australia to take responsibility for the giving of legal advice to the Solomon Islands. 

Can one imagine a situation where the United States wanted to act in a particular matter, and wanted to deport somebody to Australia on the basis of some legal matter concerning United States law and Australia determined that it would give advice to the United States about its own law?  That could not be contemplated in diplomatic circles, nor could one expect an Australian Federal Police officer to be giving legal advice to Mr Suri, the lawyer who went on to become the Attorney‑General of the Solomon Islands.  Nor could he rightly be criticised, in our submission, on the basis that he has become a party to the deportation because he did not pass that advice on to Mr Suri.  In fact, in our submission, it would have been wrong of him to have done that. 

Your Honours, unless there is any other matter dealing with the ground of appeal relating to the deportation to Australia, they are our submissions in respect of that ground.

FRENCH CJ:   The Court will not need to hear from you on the payments issue, Mr Agius.

MR AGIUS:   May it please the Court.  Your Honour, yesterday I did refer to an amended notice of contention.  Is it convenient for us to hand that up or would it preferable to just file it?

FRENCH CJ:   Well, I think you should hand it up.  These are the amendments you read into the record yesterday?

MR AGIUS:   Yes, your Honour.

FRENCH CJ:   Yes, thank you.  Yes, Mr Barker.

MR BARKER:   Your Honours, the object of the exercise was not a mere deportation, it was getting out of the Solomon Islands and into Australia.  Now, I have not read or heard anything in this case suggesting why it was necessary for him to be accompanied by two Solomon Island law enforcement officers.  He was not infirm, he was not incapacitated, he was not going to be a danger to the aircraft, he did not ask to be accompanied on the trip.  So he was compulsorily accompanied by two men who were, in effect, gaoler.  They were an adornment to a sham extradition.  It does not rise above that, with respect.

As to the policy of the High Commission in Honiara about issuing visas, could I remind your Honours of what we said in the written submissions at paragraph 56 about Ms Bootle’s evidence.  Your Honours will remember that she said it would be unusual to not issue visas on request to officers of the Solomon Islands Government.  The submission reads:

Finally, Ms Bootle’s evidence was undermined by documentary evidence which showed that the Australian Government had implemented a policy of restricting access to visas for travel to Australia for members of Solomon Islands Parliament.  The restrictions were for political reasons, and were linked to the refusal of Solomon Islands to return the appellant to Australia.

If I could just briefly take you to those two documents.  One is at volume 3, page 1187.  It is a paper written by Mr Bond on 11 July 2007.

BELL J:   I am sorry, what was the page number again?

MR BARKER:   Page 1187, line 20. 

Expected reaction:

The HoM intends to enforce a ten day notification by all S.I. Members of Parliament of a visa requirement to enter Australia.  This will effectively stop travel to Australia by Solomon Island MPs due to the administrative delays caused by their own departments in organising travel visas.  It is expected that Prime Minister Sogavare will respond with his previous anti Australian rhetoric.  Past history has also shown that the Prime Minister’s rhetoric usually results in a deterioration of the security situation for all Australian nationals.

Then if we go to volume 4, page 1354, the bit that is left after censoring, subparagraph (b):

Agree that, as a major gesture if Sikua is successful and in the light of what SIG does about Julian Moti, we should announce the end of our visa restriction policy.

So they had no hesitation at all in declining visas as a matter of political expediency.  Also my friend has said several times, and it is in the submissions, that it would have been improper for the Australians to have given advice to the Solomon Islands and that they had to go along without the benefit of Australian advice, it would have amounted to meddling in their affairs, but the evidence is quite to the contrary because when Mr Moshinski, the Solomon Islands Solicitor‑General, advised that the extradition could not succeed, Australia did its best to talk him out of it.  I will take you, if I may, to volume 2, page 730, the last paragraph of that letter.  It is again to Mr Bond and it is dated 16 October 2006:

Urgent advice is now required from AGD –

that is the Attorney‑General’s Department, of course –

that may influence Mr Moshinsky’s position.  I request that a copy of the aforementioned Cable be obtained –

Then if we go to page 732, the last paragraph in that passage:

We were preparing a written response to the Acting Attorney‑General of the Solomons indicating that we do not agree with his interpretation of Solomon Islands extradition law and its application –

Again, that is referred to at pages 882 and 883 of the same volume.  Page 883, just below line 10:

23 Oct 06 –Australian Attorney‑General forwarded a letter to Mr Moschinsky suggesting a more persuasive alternative interpretation that could be considered.

That seems to stand rather uneasily with the proposition that Australia was not inclined to give legal advice to the Philippines.  Your Honours, I am not sure that my friend quite accurately dealt with the question of the orders made against the litigation involving Mr Moti.  I would just like to make sure that there is no error here.  The application made on 22 December to the Chief Justice was on constitutional grounds.  When that was refused, Mr Moti lodged an appeal to the Court of Appeal, at the same time sought an interim order restraining the deportation or expulsion of him, and the Chief Justice refused the application for the interim order but he did not deal with the substantive appeal.  Just down the page a bit.

HAYNE J:   Which page?

MR AGIUS:   Sorry, I am looking at the schedule.

FRENCH CJ:   The respondent’s chronology.

MR AGIUS:   Yes, the respondent’s chronology.  I am sorry, I should have told your Honours that.  Sorry, it is our chronology.  It is headed “Litigation in Solomon Islands”.  It refers to pages 489 to 495.  I noticed one error against the date 27 December which reads “revoking the Magistrate’s order of 24/12/2007”, it should be 25/12/2007. 

One other matter, your Honours.  I have spoken to my friend about this.  I owe the Court an apology.  Your Honour the Chief Justice asked me were we relying on any principles of international law and I said no, but I was reminded this morning that it is actually in our submissions in the reply where we cite the International Covenant on Civil and Political Rights, in paragraph 18 of the reply.

GUMMOW J:   Just a minute.  Is the Solomon Islands a party to this covenant?

MR BARKER:   I am sorry, your Honour, I cannot answer that.

GUMMOW J:   Australia is.

MR BARKER:   Australia is, yes.

FRENCH CJ:   I do not think the Solomon Islands is.  I think the ICCPR extended to it when it was a British colony as a territory, but not ‑ ‑ ‑

MR BARKER:   The same concept is referred ‑ ‑ ‑

FRENCH CJ: But similar rights are to be found in their Constitution, are they not?

MR BARKER:   Yes.  I do not know that it adds a great deal to the case, but I should have responded more positively to your Honour’s question.  The same concept is found in paragraph 9 of Chief Justice Black’s decision in Habib in relation to the Convention Against Torture.  I am indebted to your Honours.

FRENCH CJ:   Thank you, Mr Barker.  The Court will reserve its decision.  The Court adjourns until 10 o’clock tomorrow morning.

AT 2.58 PM THE MATTER WAS ADJOURNED