Moti v The Queen

[2011] HCATrans 192

[2011] HCATrans 192

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 WEDNESDAY, 3 AUGUST 2011, AT 12.02 PM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR P.J. DOYLE, for the appellant.  (instructed by Herdlaw Solicitors)

MR J.V. AGIUS, SC:   May it please the Court, I appear with MR M.C. CHOWDHURY, for the Crown.  (instructed by Commonwealth Director of Public Prosecutions (Qld))

FRENCH CJ:   Mr Agius, I think there was a 78B notice issued in this and that the Attorney for the Commonwealth has responded that they are not intervening?

MR AGIUS:   That is right.

FRENCH CJ:   It is a matter that raises some very important issues, I would have thought, for the Commonwealth.  All right, Mr Barker.

MR AGIUS:   Your Honour, perhaps before my friend starts, we have in the process of construction an amended notice of contention.  I should alert the Court that we do not seek to rely upon some of the matters set out in the notice of contention.  Is this an appropriate time to do that or should we ‑ ‑ ‑

FRENCH CJ:   Yes all right.

MR AGIUS:   Thank you. It is to be found at page 1675, which is in volume 4 of the appeal book. The purpose of the amendment is to remove references to section 77 of the Constitution.

FRENCH CJ:   What is the amendment?

MR AGIUS:   In paragraph 2, strike out all the words after “Australia” in the second last line.

FRENCH CJ:   Yes.

MR AGIUS:   And strike out the whole of paragraph 3.

FRENCH CJ:   That is the extent of the amendments?

MR AGIUS:   That is the extent of the amendments, your Honour.

FRENCH CJ:   Yes, all right, thank you.

MR AGIUS:   We will bring in an amended document.

FRENCH CJ:   Very well.  Yes, Mr Barker.

MR BARKER:   I am sorry, I do not quite understand why it is that if they do not give rise to a matter, they remain non-justiciable.  I assume that the respondent is maintaining the position that the courts of Australia cannot look at actions of the offices of a sovereign nation taking place in the Territory of that nation, and neither can they look at the conduct of the Australian officials in this case.  Your Honours, Australian cases such as Levinge, Ditfort, Habib and English cases such as Bennett and Mullen are to the contrary.  I will take your Honours to them in more detail, but for the moment I would ask the Court to examine just how the courts below dealt with the issues of justiciability and the involvement of Australian officials.

It is firstly necessary to consider just what Justice Mullins in the Court of Appeal had to say about this issue.  I omitted to say, your Honours, that if nobody has any objection I wanted to start with ground 2 which is the justiciable matter.  I also omitted to say this, that the exhibits in the appeal books are very oddly assorted and I found it very hard going.  So, what we have done is to make some schedules of references to various subject matters which I can either hand up to your Honours now or we can give them up in the lunch hour.

FRENCH CJ:   Yes, well perhaps we can take them now.

MR BARKER:   Thank you.  They are a summary of the evidence relating to litigation in the Solomons, evidence relevant to extradition, chronology of events relating to witness payments and a chronology of references to exhibits and the transcript in an effort to divide the matters up into some sort of order and chronological sequence.  Your Honours, could I take you firstly to Justice Mullins’ judgment in volume 4 at page 1620?

GUMMOW J:   Paragraph?

MR BARKER:   Paragraph 43:

The Solomon Islands Government made the decision to deport the applicant, rather than to act on the Australian Government’s request in relation to the extradition of the applicant.  It was also the decision of the Solomon Islands Government to proceed with the deportation, despite the stay order made by the Magistrate on 25 December 2007, and to determine when the deportation order was served on the applicant and the means by which he was detained and taken from the country.  It was also the decision of the Solomon Islands Government to proceed with implementing the deportation order, despite the opportunity for a review that was given by s 5(3) of the Deportation Act.  It is not for this court to express an opinion on these decisions made by the Solomon Islands Government.

GUMMOW J:   Does that citation of the Spycatcher Case support that?  There is a citation at 165 CLR ‑ ‑ ‑

MR BARKER:   No, we say no, your Honour, we do not.  The Spycatcher Case expressly looks at the question of pretend extraditions – I forget the word it uses – and refers to Levinge.  Then she goes on to say that:

The issue that was canvassed at the hearing, in reliance on Bennett, Mullen and Levinge, was whether the Australian Government connived or colluded with the Solomon Islands Government for the deportation of the applicant to Australia, without giving him the opportunity to exercise the rights available under the Solomon Islands Deportation Act to a person who is the subject of a deportation order and, in particular, the right within seven days of being served with the deportation order to apply to the High Court for a review of the order.  The applicant sought to apply the approach of the criminal law to establishing the liability of parties for an offence committed by a principal offender to connect the Australian Government to the decisions of the Solomon Islands Government and, in particular, to characterise the Australian Government as an aider and abetter on the basis that wilful blindness is equivalent to knowledge.

Well, that is the appellant’s case, but she went on to say then:

That approach is inappropriate for analysing the conduct of sovereign nations and is not consistent with the approach in Bennett, Mullen and Levinge.

Well, your Honours, aiding and abetting or being complicit in is an extremely wide concept and it can extend from active involvement to doing nothing but give encouragement and it is simply wrong to say, with respect, that somehow it is inappropriate to apply those concepts to the conduct of sovereign nations.

So having found she could not examine the conduct of the Solomon Islands officials, her Honour then found that Australians had no involvement in the deportation which fixes it with any rights – with the denial of rights to the applicant, and that is at paragraph 45.  In my respectful submission, what she should have done was in order to determine whether there was collusion on the part of the Australian officials, she should have firstly examined the conduct of the sovereign nation in the way suggested by Justice McHugh in Levinge where he said, logically the first issue is whether the appellant was illegally expelled from Mexico.  We say she had an obligation to determine the question by examining, considering and ruling on the evidence to determine whether Moti’s deportation was attended by illegality.  If it was, as she should have found, then the next question was, were Australians involved and to what extent?

The matters she took into account in reaching the conclusion in paragraph 45 do not include all the relevant factors in any event.  She seems to have pinned her decision to the Australian Government providing travel documents for the applicant.  Whereas, what she was faced with was other evidence, for example, evidence of many meetings between Australian officials and Solomon Island officials; the passing of demonstrably false advice, legal advice, from Mr Bond, the senior liaison officer with the High Commission at Honiara; an email saying thank you for a job well done, and I would like to take your Honours to that because it is of some significance in this case.  At volume 3, page 915, it would be said by the respondent, and it was said by the courts below, that the Australians had nothing to do with all of this; they were just dispassionate observers.  This is an email from Federal Agent Bond on 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 . . .

However, the authorities here have nothing to lose by putting him on a plane for the sake of expediency but it could possibly provide obstacles in our prosecution if he can show due process / natural justice was not afforded to him.

Then down the page we have the reply from Canberra:

Thanks Peter

I have discussed with MIN who agrees that you should also depart on the same flight as Moti.

Keep us posted.  Ossie passes on his thanks for a job…almost very well done.

Yet they deny having any part in it all.  In the Court of Appeal ‑ ‑ ‑

FRENCH CJ:   Just for the purposes of understanding the statutory framework, the Act referred to in the first part of the email and relevant to the question of appeal, or review, of a deportation order I think is to be found in the provisions of the Deportation (Amendment) Act 1999 which amended the earlier Deportation Act, and brought in that review provision.

MR BARKER:   The Act is without submissions, but section 5 ‑ ‑ ‑

FRENCH CJ:   Section 5(3).

MR BARKER:   That gives the person the target, the right, to apply to the High Court of the Solomon Islands for a review.  That will have the effect, by subsection (3) – I am sorry, you make the application under subsection (3).  That would have the effect of staying the order; that is by virtue of section 3(1).  It would also enable the person, if he had been arrested and was in detention, to seek his freedom pending the resolution by the High Court of the request for review.  That is probably the most significant part of all of this case.  The whole plan ‑ ‑ ‑

HEYDON J:   Mr Barker, you mentioned section 3(1) created a stay, do we have section 3?

MR BARKER:   Yes, it is at line 30 and it is separate because it is the product of an amendment.  Section 2(3) gives the right to apply for review and section 6(2) would enable a person to be “released from detention” and ‑ ‑ ‑

HAYNE J:   The power to remove, which is given by section 7(2) is a power that comes into operation, only if either the person concerned has “not made application” within time, or “has made application” and the application has been disposed of.

MR BARKER:   Yes, your Honour.

HAYNE J:   So 7(2), the power to remove is engaged only on the happening of certain events or the effluxion of certain times.

MR BARKER:   Yes, your Honour.

HAYNE J:   That is the power to place someone on a ship or aircraft about to leave.

MR BARKER:   Yes, and the – I am sorry, in answer to the question posed by your Honour Justice Heydon – sorry, the stay is subsection (1) of section 3:

Where an application has been made against a deportation order . . . the operation of the order shall be suspended until the application is finally disposed of or abandoned.

Now, incidentally, that same issue arose in Mullen’s Case, where the Zimbabwe legislation permitted him three days to appeal ‑ ‑ ‑

GUMMOW J:   What is the citation of Mullen?

MR BARKER:   It is [2000] QB 520. I did not want to get off track, but I will take you to it. The same sort of thing arose there where it was agreed on by the English secret service and the Zimbabwe officials that Mullen would be deported and not given the opportunity to avail himself of the three day review, and the court found that was an extremely significant factor in law. Justice Holmes at appeal book 4, 1655 said this at paragraph [47]:

“Disguised extradition”

The respondent argued that his removal from the Solomon Islands amounted to a disguised extradition in which the Australian Government had concurred or connived.  Knowing that the deportation was illegal because the respondent had not been permitted to exercise his rights under the Solomon Islands Deportation Act, the Australian Government had provided the accompanying officers with visas and, at the request of the Solomon Islands Government, arranged accommodation allowances for them in Brisbane; had initially been prepared to send the Australian Federal Police liaison officer on the flight, although that decision was rescinded; had issued a travel document enabling the respondent to enter Australia; and had communicated his flight arrival details to Australian Federal Police in Brisbane so that he could be arrested there.  An associated ground for maintaining the stay order was that the learned primary judge failed to treat the conduct of the Solomon Islands Government as justiciable.

There are a number of difficulties with these arguments.  Firstly, the argument that the learned primary judge should have scrutinised the conduct of the Solomon Islands Government can have no force if there was no involvement of the Australian Government in that conduct.  Secondly, the learned primary judge, who heard and saw the relevant witnesses, found that the actions of the Australian Government could not be:

“characterised as connivance or collusion with the Solomon Islands Government to avoid the possibility of the applicant relying on rights conferred by the Deportation Act.  There was no act or involvement of the Australian Government in the deportation which fixes it with the consequences of any denial of rights ‑ ‑ ‑

HAYNE J:   It may be necessary to look beyond the abstract term “the Australian Government” to make a rather more particular inquiry.

MR BARKER:   Yes, your Honour.  She goes on:

It would appear that what the respondent argues for is a different finding of fact.

Well, the respondent does not argue for a different finding of fact.  He is arguing for a finding of facts based on all the facts in evidence and they have not taken account of it.  If one goes to paragraph [50] on page 1656, her Honour said that:

I do not think that mere knowledge on the part of the Australian Government that the respondent’s deportation might be illegal equates to the active involvement in procuring deportation –

Well, that was never put by the appellant.  It was not a case involving mere knowledge, it was a case involving knowledge plus involvement.  Secondly, she said:

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

Well, that is contrary to the evidence.  The Australian Government made a formal request for extradition, I think, in September 2006 or October 2006 and that just lay there and was formally refused in September 2007.  The only other thing they did was to apply for a provisional arrest and I think that was in – it is on the chronology but that was, I think, in October 2007, and there was no further request for extradition.  She says further that Australia:

rigorously abstained from expressing any view on what the Solomon Islands Government proposed.

Well, that is simply contra to the evidence.  There was no rigorous abstention at all.  There was active involvement.  She says:

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.

Well, it might have been had there been a proper extradition, but the whole focus of this scheme was to get him on a plane straight away so that he could not do anything in his defence and have him arrested when he got to Brisbane; things which might have had the appearance of an extradition but which were, in fact, a sort of abduction.  Why did he have two escorts?  Two law enforcement officers from the Solomon Islands were given Australian visas so they could accompany him on the plane.  If he was simply being deported, all they had to do was put him on a plane and once he was out of the Solomon Islands airspace that was the end of the matter.  Then she says:

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

That seems to assume that Mr Moti himself applied for this document of identity, but that is not the case.  It was issued in order to allow the police to take him into Brisbane.  He did not ask for it.  He was never even given it.  So, all these matters, we say, were misread by her Honour Justice Mullins and by the Court of Appeal, and we respectfully submit that the appellant is entitled to a ruling by this Court as to the justiciability and as to complicity.  Now, it might be convenient to take your Honours in some more detail to these cases.  Her Majesty’s Attorney‑General v Heinemann 165 CLR 30 – I think I need only take you to pages 40 to 41.

GUMMOW J:   In any event, what is said there is purely dicta, is it not, once it goes beyond foreign penal ‑ ‑ ‑

MR BARKER:   Yes, your Honour, yes.

GUMMOW J:   ‑ ‑ ‑ revenue laws.

MR BARKER:   In our submission, the case is irrelevant to the situation here.

GUMMOW J:   That appears from page 41, about line 20.

MR BARKER:   Yes.

GUMMOW J:   

The associated rule with which we are presently concerned –

MR BARKER:   Yes.  Levinge was decided in 1987 by the Court of Appeal in New South Wales, 9 NSWLR 546, and it quite clearly said this. Well, I think the best passage is at page 555 to 556 at line E. His Honour President Kirby picked up the New Zealand case and cited the New Zealand Court saying:

“. . . in our opinion there can be no possible question here of the Court turning a blind eye to action of the New Zealand police which has deliberately ignored those imperative requirements of the statute.

Now, he was just put on a plane from Australia and sent to New Zealand.  In Levinge his Honour said at the bottom of page 556:

Where a person, however unlawfully, is brought into the jurisdiction and is before a court in this State, that court has undoubted jurisdiction to deal with him or her.  But it also has a discretion not to do so, where to exercise its discretion would involve an abuse of the court’s process.  Such an abuse may arise by reason of delay on the part of prosecuting authorities.  But delay is only one variety of unfair or wrongful conduct on the part of those authorities.  Other such conduct may exist, including wrongful and even unlawful involvement in bypassing the regular machinery for extradition and participating in unauthorised and unlawful removal of criminal suspects from one jurisdiction to another.

Now, of course, the issue here was that Levinge said he was treated illegally by the FBI and forcibly taken from Mexico to the United States and then extradited to Australia.  The court said, well, that is all very well but there is absolutely no evidence of any connivance by Australians in the removal from Mexico to California, so he failed.  Questions posed set out by Justice McHugh at the bottom of page 557:

The issues in the appeal are:

(1) Was the plaintiff illegally expelled from Mexico?

(2) If so, was that the result of an agreement with FBI agents?

At page 560, line D, he said:

Logically, the first issue is whether the plaintiff was illegally expelled from Mexico.  If evidence of the plaintiff is accepted, the only conclusion would be that he was illegally expelled as a result of a corrupt agreement between FBI agents and the Mexican police.

And the case was conducted on that footing.

FRENCH CJ:   What does the notion of complicity involve?  Does it involve active engagement in the unlawful act within a foreign state?  Does it extend to knowingly taking advantage of an unlawful removal in some way?  I am just wondering what its limits are, especially where there is an infringement of, say, a constitutional right.

MR BARKER:   Yes, your Honour, all those things, including turning a blind eye.  His Honour sort of sums it up at the bottom of page 564:

I think that this Court should give effect to the law as expounded in R v Harley.

That is the New Zealand case –

That case and the cases which have followed it decide that, where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities, a court has jurisdiction to stay criminal proceedings on the ground that they are an abuse of process.  It seems to me, as it seemed to the New Zealand Court of Appeal, that the courts cannot turn a blind eye to a deliberate disregard of statutory requirements concerning extradition.

At line D on page 565:

before a stay can be granted the prosecution must have been either a party to the unlawful conduct or connived at it.

GUMMOW J:   Justice McLelland put it, I think, more broadly at 567, letter E to G, involvement in irregularity, in proper activities, procuring or bringing within the jurisdiction.

MR BARKER:    Yes, thank you.  I am indebted to your Honour.  Going to Ditfort (1988) 19 FCR 347, the judgment of your Honour Justice Gummow, you referred to Levinge at page 367:

two members of the Court of Appeal went on to state that State courts would have power to prevent abuse of their processes by staying criminal proceedings where the prosecuting authorities had procured the production there of the accused by knowing circumvention of provisions of an extradition treaty otherwise applicable –

Your Honour appears to have cited that approvingly.  At page 369 you cited Heinemann, at least according to my notes you cited Heinemann.

HEYDON J:   Page 368.

MR BARKER:   I am sorry, yes.  From 369, you said at the bottom of the page:

Additional considerations appear where the issue is not one of alleged lack of constitutional power, but rather one of the propriety of the conduct by the Executive Government of the Commonwealth of relations with foreign governments within the scope of its constitutional powers in that behalf. The plaintiff will, as in the case with claims put forward on constitutional grounds, still have to possess the necessary standing to claim the relief sought. But there being no question arising under the Constitution or involving its interpretation, where are the disputed rights supplying the necessary content of a “matter” within the meaning of Ch III of the Constitution? Dealings between Australia and foreign States will not normally, in the absence of legislation, create rights in or impose obligations upon Australian citizens or residents . . .

However, the taking of a step in the conduct of international relations, whilst of itself neither creating private rights nor imposing such liabilities, may be a step in a process which as a whole may have that effect.  In such cases, the process may give rise to matters justiciable at the suit of an individual.  The cases dealing with “disguised extradition” provide examples –

Then along came Horseferry Road Magistrates Court; Ex Parte Bennett [1994)] 1 AC 42. I think that should be [2000] AC. At all events, Mullen was convicted of conspiring to blow up people and – he was a member of the IRA – he was convicted and sentenced to 30 years imprisonment. There was no issue about the trial, which was fair, but about seven years after his conviction, matters were disclosed which related to how he was brought to the jurisdiction of the English courts from Zimbabwe and it was shown that the British Secret Intelligence Service had colluded with the Zimbabwe Central Intelligence Organisation to bring Mullen to England without bothering about extradition. If you go to page 526, there is a reference at line A about contact between the two organisations, how he could be returned to England into police custody:

The aim was “foolproof return of Mullen to London.” . . . the C.I.O. indicated they “did not want to get involved in extradition which was likely to get bogged down.”

Now, Mullen had committed a number of offences in Zimbabwe, so they had a right to deport him, but it was done in such a way as to preclude close scrutiny of the arrangement in England.  Going to line D on page 526:

On 20 January the S.I.S. in London indicated that every S.I.S. step would require the utmost care “with a constant eye on any subsequent legal proceedings in London.”  The C.I.O. were provided by an S.I.S. officer with a draft paper recommending deportation for illegally using false identities in Zimbabwe –

and other matters –

the police indicated that “it could be detrimental to any future legal proceedings in England if it appeared that his return was by means other than official channels.”

On page 527, line C, there was a meeting of officials, and just below line D:

if Zimbabwe decided to deport there would be considerable advantage in not telling Mullen until shortly before he was put on a flight “in order to minimise the risk of him trying to appeal against deportation;” it would be important to ensure that the High Commissioner and all Zimbabwe departments were aware that the U.K. government was not involved in any way; Mullen should be put on a plane quickly –

and there was a recommended line for the media.  At the bottom of page 528, line H, he was deported ostensibly, according to the Immigration Act:

Section 8(3)(a) requires written notice to the defendant that he is a prohibited person.  By section 8(4) the power of removal does not extend to the holder of a temporary permit . . . By section 21 the defendant had three days in which to appeal to a magistrate against a notice made under section 8(3)(a) that he was a prohibited person, and by section 23 a right to make representations to the minister within 24 hours ‑ ‑ ‑

FRENCH CJ:   You have spoken in your submissions of removal breaching a statutory right of appeal against his deportation, in the case of your client, and I think, as Justice Hayne pointed out with respect to the operation of section 7 of the Deportation Act, the fact is there was not a power to remove, is that right, because the time for his appeal had not expired, or his review had not expired?

MR BARKER:   Is that right?  It was done deliberately to prevent him exercising the right.

FRENCH CJ:   The power to remove had not crystallised at the time he was removed?

HAYNE J:   The only power to put him on a ship or aircraft leaving Honiara was a power that came into being if either he had appealed and had failed or time for appeal had expired.

MR BARKER:   He did not appeal, yes, your Honour, relying on the notice which I have taken you to under the Deportation Act.

GUMMOW J:   In Mullen, was there any point taken, there does not seem to have been, that the investigation of the collusion, as it was said, with the authorities in Zimbabwe, that that was something not to be investigated because of some act of state doctrine?

MR BARKER:   No.

GUMMOW J:   The act of state doctrine does not seem to poke its head up in these removal cases in the United Kingdom.

MR BARKER:   No, it does not intrude into it at all.

HAYNE J:   No matter how the test is framed, as there are several framings of the test, knowing circumvention, Ditfort at 367, improper activities in procuring that is brought within the jurisdiction at 567 of Levinge, knowing circumvention of an extradition treaty, 564 of Levinge or Bennett, forcibly brought within the jurisdiction in disregard of procedures by a process to which the authorities were a knowing party, I think whichever formulation was seen as applicable in the particular circumstances of each case is one which necessarily had the court inquiring into, not only what the relevant authorities of England, Australia, whichever jurisdiction did, but the character that activity had by reference to the law of the jurisdiction from which the removal occurred.  If that is so, the statement of the proposition seems in terms to deny any engagement of some act of state or broader concept.

MR BARKER:   Precisely.  If the act of state, whatever its real reach, could be invoked in circumstances like this, it would simply prevent any investigation and any action by the person the target of the deportation.

FRENCH CJ:   That might be an appropriate time.

MR BARKER:   Thank you, your Honour.

FRENCH CJ:   We will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Barker.

MR BARKER:   Your Honours, I was taking you to Mullen’s Case.  Would you mind going to page 534 where their Lordships discussed the balancing exercise.  At line D:

As a primary consideration, it is necessary for the court to take into account the gravity of the offence in question.  In the present case, the substance of the offence was the facilitating of a bombing campaign in the United Kingdom . . . The sentence of 30 years’ imprisonment reflects the gravity of the offence.

Secondly, although the defendant had lent his assistance to an active I.R.A. unit, there is no evidence to suggest that, unless he were at once apprehended and brought back to this country, he would pose . . . security threat.

Thirdly, it is necessary to consider the nature of the conduct of those involved in the deportation on behalf of the British Government.

I am trying to shorten this a bit.  At page 535, line D:

This court is firmly of the view that it must have been appreciated by the S.I.S., and probably by the police in Britain, that the vital element in the operation, the insulation of the defendant from any legal advice following his detention, was in breach of specific provisions of the law of Zimbabwe, or, at the least, was contrary to the defendant’s entitlement as a matter of human rights.

In summary, therefore, the British authorities initiated and subsequently assisted in and procured the deportation of the defendant, by unlawful means, in circumstances in which there were specific extradition facilities between this country and Zimbabwe.

Your Honours, just pausing there, there was no extradition treaty between the Solomons and Australia at the material time, but it has never been suggested by the Crown that that somehow would provide a reason for deportation order.  Clearly, there were friendly relations between the two countries.  Australia made a request for an extradition and on two occasions requested extradition warrants.  The relationship derived from the London scheme which was introduced way back in the time of the Statute of Westminster following which each country had its own legislation.  At line F on page 535:

In all these circumstances, can it now be said that the conduct of the British authorities in causing the defendant to be deported in the manner in which he was, and in prosecuting him to conviction was . . . “so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed?”

This court recognises the immense degree of public revulsion which has, quite properly, attached to the activities of those who have assisted and furthered the violent operations of the I.R.A. and other terrorist organisations.  In the discretionary exercise, great weight must therefore be attached to the nature of the offence involved in this case.  Against that, however, the conduct of the security services and police in procuring the unlawful deportation of the defendant in the manner which has been described represents, in the view of this court, a blatant and extremely serious failure to adhere to the rule of law with regard to the production of a defendant for prosecution in the English courts.  The need to discourage such conduct on the part of those who are responsible for criminal prosecutions is a matter of public policy to which, as appears from [Bennett’s Case] very considerable weight must be attached.

FRENCH CJ:   In this case you rely upon action contrary to the domestic law of the Solomons?

MR BARKER:   Yes.

FRENCH CJ:   You do not put any public international law dimension to it?

MR BARKER:   No.  It is just a flagrant breach of his rights according to Solomon Island law, remembering, of course, there were two objects of it.  One, they wanted him out of the Solomons because he was a nuisance and, two, they had revived the prosecution for the Vanuatu offence back in 1997 which required. if it was going to be carried through to its logical conclusion, the laying of an indictment in Australia, which is what happened.  Going back to Mullen at page 536, line F:

In these circumstances, we have no doubt that the discretionary balance comes down decisively against the prosecution of this offence.  This trial was preceded by an abuse of process which, had it come to light at the time, as it would have done had the prosecution made proper voluntary disclosure, would properly have justified the proceedings then being stayed.

Then, finally, your Honours, at page 537, line E:

Furthermore, although abuse of process, unlike jurisdiction, is a matter calling for the exercise of discretion, it seems to us that Bennett-type abuse, where it would be offensive to justice and propriety to try the defendant at all, is different both from the type of abuse which renders a fair trial impossible and from all other cases where an exercise of judicial discretion is called for.  It arises not from the relationship between the prosecution and the defendant, but from the relationship between the prosecution and the court.  It arises from the court’s need to exercise control over executive involvement in the whole prosecution process, not limited to the trial itself –

Now, your Honours, I had intended to do this a little more tidily by citing Bennett before Mullen because that is the chronological order, but I will take you briefly to Bennett, if I may.  It is Reg v Horseferry Road Magistrates’ Court; Ex parte Bennett [1994] 1 AC 42. At page 51 the facts are recounted by Lord Griffiths. Line F:

It is the appellant’s case that, having taken the decision not to employ the extradition process, the English police colluded with the South African police to have the appellant arrested in South Africa and forcibly returned to this country against his will.  The appellant deposes that he was arrested by two South African detectives on 28 January 1991 at Lanseria in South Africa . . . Thereafter he was held in police custody until he was placed on an aeroplane in Johannesburg ostensibly to be deported to New Zealand via Taipei.

But eventually he finished up at Heathrow, which is where the police wanted him to be so that they would not have trouble with extraditing him.  At page 61 where he deals with abuse of process at line E:

There have, however, also been cases in which although the fairness of the trial itself was not in question the courts have regarded it as so unfair to try the accused for the offence that it amounted to an abuse of process.

Line H:

Your Lordships are now invited to extend the concept of abuse of process a stage further.  In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures.  If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

I think we could go down to the line just below ‑ ‑ ‑

GUMMOW J:   The question in that case is whether there was a jurisdiction, was there not?

MR BARKER:   Sorry, your Honour?

GUMMOW J:   The question in Bennett, if one looks at page 64, letter E., there was a question and it was remitted to the Divisional Court to look into it further.

MR BARKER:   Yes, which they did.

GUMMOW J:   What would we do if we were in your favour in this case?  Would we send it back or rule ourselves?

MR BARKER:   I submit your Honours should rule yourselves.  Going back to page 62, at line F:

In my view your Lordships should now declare that where process of law is available to return an accused to this country through extradition procedures our courts will refuse to try him if he has been forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own police, prosecuting or other executive authorities have been a knowing party.

In Australia, in 2010, the issue of justiciability and the act of state doctrine were given a thorough consideration by the Full Court of the Federal Court in Habib v Commonwealth of Australia (2010) 183 FCR 62. The issue was whether Habib could sue the Commonwealth for actions by Commonwealth officers in collusion with those of foreign countries contrary to the Crimes (Torture) Act.  The Commonwealth claimed that the act of state doctrine prevented an examination while the actions of the officials of the foreign companies and the Full Court unanimously rejected that submission and rejected the submission that the act of state doctrine prevented the Federal Court from determining the unlawfulness of acts of agents of a foreign state within the territory of the foreign state.  The question reserved can be found at page 66, line 4, by Chief Justice Black:

The question reserved for the Court . . . is whether, as the Commonwealth asserts, the Court should dismiss the claims of misfeasance in public office and intentional but indirect infliction of harm for the reason that, since their resolution would require a determination of the unlawfulness of acts of agents of foreign states within the territories of foreign states, those claims are not justiciable and give rise to no “matter” within the jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) and s 77(i) of the Constitution of the Commonwealth (the Constitution) . . . 

The Commonwealth argues that the act of state doctrine of the common law compels this result. 

Well, each of the judges found to the contrary.  The longest judgment is Justice Perram.  I will not take you right through it, but line 21 on page 70, his Honour sets out the facts in issue, “his interrogation in Pakistan, Egypt, Afghanistan and Guantanamo Bay”.  On page 74, line 29:

Whatever else the act of state doctrine is it can neither “cut across Marbury v Madison” –

which has courts there that resolve issues, not Parliament –

nor operate so that the Constitution itself is “crippled”. Yet that is precisely what the Commonwealth’s submissions entail. If accepted, they would mean that the High Court (and this Court too) would be unable to entertain Mr Habib’s suit to enforce the limits of s 61 of the Constitution and to ensure that officers of ASIO and the AFP acted within the law. To the extent that the act of state doctrine would confer immunity from suit on the Commonwealth it is inconsistent with the constitutional orthodoxy of this country and its application is to be rejected in a fashion as complete as it is emphatic.

KIEFEL J:   May I interrupt you to ask whether officers of the Australian Federal Police would be officers of the Commonwealth for the purposes of the Judiciary Act and the Constitution?

MR BARKER:   Yes, your Honour, we would say yes.  Going on a bit at page 95 his Honour said just below line 110:

The effect of the Commonwealth’s invocation of the act of state doctrine, if accepted, is to preclude the truth or otherwise of the allegations founding the claim from being tested and determined.

Page 96 line 114:

As Mr Habib said, the consequence of the Commonwealth’s submission is that Commonwealth officials could not be held accountable in any court for their alleged breaches of Australian laws having extra-territorial effect.  The consequence of Mr Habib’s submissions, in contrast, is that each set of government officials would be able to be held accountable for their actions in their national courts.  The cases on which the Commonwealth relied do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra‑territorial application.  The case law indicates to the contrary.

Finally, at page 99, line 127:

The Commonwealth’s submission that this is a common law claim for damages, not a constitutional claim, needs to be analysed. This is a proceeding in which the Commonwealth is a party. The foundation of the principal tort on which Mr Habib relies in the claim (misfeasance in public office) is conduct by Commonwealth officials in excess of power. Specifically, it is alleged that the acts of the Commonwealth officials exceeded the power of the executive in s 61 of the Constitution in that those acts were not for the execution and maintenance of the Constitution and contravened the laws of the Commonwealth.

So, each of the Federal Court judges rejected the Commonwealth submission that the act of state could be called in aid to defeat Habib’s claim.

HAYNE J:   A possible point of view about invocation of the act of state doctrine in those circumstances may be that, one, it is cast at a very high level of generality.  “Never inquire” is the common expression.  What that is obscuring is that there are two questions that have to be addressed.  One, a question of jurisdiction in the sense, does the court have power over the defendant, whether by reason of subject matter, presence or otherwise?  Second, in a case concerning events overseas, what choice of law is to be made about the law that is applicable to regulate the relations between the parties?  Often, I would have thought, questions of jurisdiction and choice of law would largely solve what otherwise is sought to be solved by adopting a very large maxim from a generalised statement made in the United States more than some decades ago.

Now, in this case, the question is one about abuse of process.  Abuse of process of what kind?  Abuse of process of the court in which Mr Moti is to be presented or is presented.  The question that is said to be enlivened is there has been conduct by officials of the Australian Executive of a kind that invokes notions of abuse of process.  Now, at what point in this inquiry does one inject notions as broad as act of state, if that is understood as never inquire, ever, about anything that happens overseas?

MR BARKER:   Well, we say the act of state doctrine, whatever it is precisely, simply has no application to this case, to these circumstances, and the abuse of process involved is, as was explained in Mullen’s Case, it is directed to the relationship of the Crown with the court, rather than the relationship between the Crown and the accused.  It is an abuse which led him directly to be arrested and indicted.  Were it not for the abuse, he would not have been arrested or indicted.  So it is the unlawful conduct of the Australians, in collusion with the Solomon Island officials, which enabled Australia to indict him for the offence that is the subject of these proceedings.

HAYNE J:   Two things.  First, none of the ideas I opened for consideration should be regarded as original.  They are all derived from the work of F.A. Mann and his numerous writings on the subject.  F.A. Mann wrote about this in the 1940s through to the 1970s, 1980s.  The second point to be made is that the focus must fall upon what conduct of Australian officials is it that you say leads to the inquiry; not what conduct of Solomon Islands officials immediately gives rise to some question, but what conduct of Australian officials is at issue?

MR BARKER:   Yes, and the conduct we rely upon, and the appeal books are replete with documents going to that issue, is the connivance with the Solomon Islands officials in illegalities committed by the Solomon Islands officials denying ‑ ‑ ‑

HAYNE J:   Well, connivance is covering a multitude of sins, Mr Barker.  You will need to make that good.

FRENCH CJ:   For example, I put the question to you earlier, is it sufficient to engage jurisdiction to stay for abuse of process if you establish that Australian officials knowingly took advantage of unlawful conduct on the part of Solomon Islands officials as a foundation for the jurisdiction which is sought to be invoked?

MR BARKER:   Yes, if it lead to the prosecution which would not otherwise have been possible.

FRENCH CJ:   If it is that broadly expressed, then actual complicity in the sense of aiding or abetting the unlawful conduct may be sufficient but not necessary.  I do not know whether it is right to say that it can be that broadly expressed.

MR BARKER:   Well, it is a question of circumstance and result.  Here we have, as the evidence shows, a longstanding desire by Australia to get rid of Moti from the Solomon Islands because he was seen as to be an impediment to the proper workings of the Ramsey scheme and, for other reasons, they wanted him out.  Australia saw him as an impediment to Australia’s interests, so the old prosecution in Vanuatu was revived with a view to impeding his access to the office of the Attorney‑General of the Solomon Islands.  That was the subject of careful and considered thought by Australia from 2004 to 2007, really.  There was a segment of the Solomon Islands parliamentarians who held the same view and when there was a change of government in 2007, that is when the plans to deport him were considered in more detail and more depth. 

KIEFEL J:   Do we not have to focus on the facts that are available – the evidence that is available to us?

MR BARKER:   Well, yes.  I was going to do that.

KIEFEL J:   I mean, this background on the part of Australia which is a rather generalised reference, no doubt, to a number of individuals, it may well be the case if you can identify it for us, but I had rather thought that the evidence here concerned the conduct of the Australian Federal Police officers and consular or commission officers in relation to his deportation.  I thought that was the conduct with which we were concerned.

MR BARKER:   Yes, but it could not be achieved without the co‑operation of Australia.  Two examples of direct assistance were, firstly, the two visas issued by Australia ‑ ‑ ‑

KIEFEL J:   I was going to ask you about that.  If there is a request for a visa, is there a possibility of refusal or would that not be regarded as possible in the normal course of things?

MR BARKER:   There was every possibility. 

KIEFEL J:   How do we ‑ ‑ ‑

MR BARKER:   The visas were issued not to assist Moti, but to ensure he was kept in custody during the whole trip.  The certificate of identity was to enable the police to get him through Customs in Brisbane to be arrested, because he did not need visas or a certificate of identity to leave the Solomon Islands.  They needed to give him the certificate of identity to get into Australia and the two visas were to permit two law enforcement officers to accompany him until the point of his arrest.  Now, all that was the object of the plan for his deportation.

KIEFEL J:   I suppose what I am asking you is, if this had been a case of deportation where the Australian officers were not aware of illegality, could they have properly refused a request for those papers to allow entry into Australia?

MR BARKER:   It would depend on the purpose for which the visas were required and there is evidence that although one witness said that visas would be issued as of course, there is evidence that visas were deliberately withheld from members of the Parliament of the Solomon Islands.

BELL J:   But that raises different considerations, does it not?  This is Australia declining to grant visas to members of the Solomon Islands Parliament for whatever reason.  Here we have an Australian citizen on the proposition that I think Justice Kiefel is putting to you – assume for a moment an Australian citizen who does not have a passport is being lawfully deported from another country.  In those circumstances, would there not be an obligation on Australia to provide its citizen with travel documents?

MR BARKER:   No, your Honour.  He was in custody.  He did not want to go.  He was not asking for a visa.

BELL J:   I understand that, but the matter that is being raised is, and it touches, I think, on the evidence to which you refer, in circumstances in which a deportation is proceeding lawfully, does the country of which the person is a citizen have an obligation to provide travel documents to that country’s citizen?

MR BARKER:   No, I would submit not, but ‑ ‑ ‑

BELL J:   That was the effect of the evidence, I think, of the diplomatic officer, was it not?

MR BARKER:   Yes, but it is not the case here anyway because the deportation was not lawful, because the deportation was deliberately designed to prevent him from having the order reviewed.  So the whole thing was illegal, we submit, from the beginning.

BELL J:   Much might depend on the knowledge of the Australian officers.

MR BARKER:   Yes, I will have to take you to that.

GUMMOW J:   In Air Caledonie 165 CLR 462 at 469 the Court unanimously proceeded on the basis that an Australian citizen had a right to enter the country. You cannot be impeded by this sort of visa activity. However, as I understand your point, your client did not wish to exercise that right.

MR BARKER:   That is right, your Honour, and the visas were issued pursuant to a plan to illegally deport Mr Moti and deliver him into the arms of the Australian Federal Police.  I should take you to the deportation order or notice, which is at appeal book 2, page 500.

BELL J:   It is at 500 and 501, I think, of appeal book 2.

MR BARKER:   Yes, thank you.  You can see it is dated 24 December, but it was not served until 27 December.  He has been declared:

an undesirable person who has conducted himself in a manner prejudicial to the peace, public order, public morality, security and good government of Solomon Islands. 

The particulars of the facts are that “you are a foreign national”, “you were previously exempted under section 7(c) of the Immigration Act”, “your appointment as Attorney General has been terminated”, and:

the legal basis upon which the Cabinet has resolved to terminate your appointment and employment was that you have conducted yourself in a manner which has demeaned the office of Attorney General and called your integrity into question.

Of course, the notice tells him nothing about what he is supposed to have done.  The relevance of that, I suggest, is that had he been able to exercise his right to have the order reviewed, it would inevitably have been quashed because it does not comply with the statute which requires the delivery to him of particulars.

BELL J:   But do you need to go there given the circumstance that he was removed over protest on the day that it was served on him, having regard to the statutory scheme?

MR BARKER:   No, I do not have to go there.  Perhaps it is irrelevant.  It highlights, I submit, the importance of the right of review, that is all.  After the change of government, which is on 20 December 2007, the position of the Solomon Islands’ officials was that all court orders could be ignored.  If Mr Moti wanted to exercise his right to have the deportation order reviewed he could do so from Brisbane; that is, after he had been deported and was in custody in Australia.  Could I take you please to volume 2, 628, which is a cable to Canberra from Honiara dated 27 December?  That is the day of the deportation.  This goes to knowledge and Australia’s interest in this:

Arrangements for Moti’s removal from Solomon Islands this afternoon remain on track.  Moti has obtained an Interim Order (and from our reading, has a right to appeal his deportation under the Deportation Act).  The Solomon Islands Government remains determined to deport him this afternoon.

Immigration Permanent Secretary Wickham has instructed Immigration Officers and Police to serve the Deportation Order on Moti at 2pm this afternoon.  They have been instructed to escort him directly to the airport for the 3.10pm Brisbane flight.

Then paragraph 5:

On our reading, the Deportation Act (s5(3)) gives Moti seven days to appeal to the High Court after being served with a Deportation Order (as noted in HO4654H).  The interim order appears to signal Moti’s intention to appeal.  Most likely, we think, would be an appeal under the Deportation Act.  However, we have been told Wickham has instructed Immigration officials accompanying Moti to tell him, if he raises the issue, to “appeal from Brisbane”.

Then if you go to volume 3, page 1133 is the last page tendered of Mr Bond’s diary.  It was dated 27 December and he says:

Briefing at P.S. – by AG to –

I am not sure what that word is.

HAYNE J:   “SIPF/Immigration” is it?  Solomon Islands Police Force.

MR BARKER:   Yes, thank you, yes:

- D.O. gazetted.

- only High Crt can review D.O.

- cannot go to H.C. until DO is executed.

- under surveillance.

- ignore any crt orders Moti has.

- can appeal from Brisbane.

That is what Bond was told.

KIEFEL J:   I am sorry, Mr Barker, whose document is this?

MR BARKER:   It is Department of Foreign Affairs and Trade – I am sorry, the diary?  It is Mr Bond’s diary.

KIEFEL J:   I am sorry?

MR BARKER:   Agent Bond.

KIEFEL J:   Then in the same volume at page 913, third paragraph:

Mr. Wickham further advised that it was Government’s decision that Moti should then be placed on the first available plane to Australia which departs Honiara to Brisbane at 1500hrs tomorrow (25.12.07).  The S.I. Deportation Act does stipulate a period of seven days for the deportee to appeal the Order.  However, it was Mr. Wickham’s view (and the Government’s) that Moti’s Appeal against deportation was heard on Saturday 22.12.07 (as reported) and that Application to stop deportation has been dismissed.

Well, that is just not so:

Wickham requested an Australian Police Officer accompany Moti on the flight . . .  I advised Wickham that I would accompany Moti –

He was told not to but that surely indicates a willingness to be involved in the process of the illegal deportation.

BELL J:   The travel documents were handed over by Federal Agent Bond, were they, after the diary note that you have directed our attention to?

MR BARKER:   Yes, that must be so, your Honour.  1219 is the page I took you to earlier where Mr Bond is giving his thanks for a job almost very well done, which must encompass the notion that the job was to get Moti on the aeroplane to Brisbane, and they knew it was illegal because they knew of the seven day period.

GUMMOW J:   Looking at page 916, line 30 ‑ ‑ ‑

MR BARKER:   Is this volume 3, your Honour?

GUMMOW J:   916, line 30, who is FA Macdonald?

MR BARKER:   She was the Federal Police Agent in charge of the prosecution.

GUMMOW J:  

has advised that Australian Immigration have requested –

that must be a request in response to some stimulation of Australian Immigration to consider the matter.

MR BARKER:   Yes.

HAYNE J:   That is reflected at 913, line 37 or 8, same information in the earlier email of that day.

MR BARKER:   I am sorry, what page is that, your Honour?

HAYNE J:   913, line 38:

FA MacDonald has advised that Australian Immigration have requested the SAO –

Senior Australian Officer?  Do not know –

at Post to provide a Travel Document for Moti (SLO to confirm).

Again, do not know.

MR BARKER:   I think I had better take you to the evidence in some detail about these travel documents.  We refer to them firstly in our submissions at paragraph 51 on page 15.

FRENCH CJ:   Now, what are you seeking to demonstrate by this?

MR BARKER:   The issuing of the travel documents as part of a scheme to illegally deport Mr Moti and ensure his attendance to be arrested at Brisbane.  That is at paragraphs 51 to 56.  Then the primary judge in the Court of Appeal seemed to have found the documents were of no consequence, that Justice Mullins in volume 4 at page 1621 – I have already taken you to the paragraph, but she referred to:

by providing travel documents for the applicant and the escorting officers) cannot be characterised as connivance or collusion –

At page 1656, Justice Holmes said at paragraph [50] that:

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

I think the first reference in volume 2 at page 856, which is a statement of intention, I think ‑ ‑ ‑

KIEFEL J:   I am sorry, I cannot hear you, Mr Barker.

MR BARKER:   At the top of page 856, volume 2, an email from Mr Bond or a minute from Mr Bond dated November 2006.  At the top of the page:

- the Australian government through the Australian High Commission Honiara is prepared to work closely with the Solomon Island Government to facilitate Moti’s return to Australia;

- travel documentation will be issued to Moti to allow his travel to Australia –

If you would then go to page 640 ‑ ‑ ‑

KIEFEL J:   To whom is that memo addressed?  What is “NMBIN via MIN”?

MR BARKER:   I am sorry?

KIEFEL J:   On page 855, who is the addressee to translate the ‑ ‑ ‑

MR BARKER:   Manager of the international branch of the AFP, your Honour.

HAYNE J:   Manager of the international branch of?

MR BARKER:   The Australian Federal Police.

KIEFEL J:   What does IN stand for?  How do you get AFP from ‑ ‑ ‑

MR BARKER:   I am sorry.  IN is international and M is manager.

KIEFEL J:   Sorry, it stands for national manager?

MR BARKER:   Manager of the – international desk of the Australian Federal Police, manager.

KIEFEL J:   Via MIN, via the Minister, is that right, or not?

MR BARKER:   I am sorry, I should know that. 

HAYNE J:   It is surprising if police officers are reporting directly to the Minister.

KIEFEL J:   Yes, but what is it?

MR BARKER:   Can I come back to you on that, your Honour?  I am sorry, I just cannot answer it.

KIEFEL J:   Thank you.

MR BARKER:   I am told it means national manager international border via manager international.

MR AGIUS:   I am obtaining some instructions.  I should be able to assist the Court shortly.

MR BARKER:   Thank you, I am indebted to my friend.  If you would go, please, to page 640, that is in volume 2.  This is Agent Macdonald’s affidavit:

33.At about 10:45am on 24 December 2007 I was advised by Federal Agent Bond that the Solomon Islands Cabinet had decided Moti was to be deported.  I then advised him that the Department of Immigration and Citizenship required travel documents to be arranged for Moti in order for him to be able to enter Australia.  He advised this would be organised through the Consular and Passports staff member at the Australian High Commission in Honiara.  He advised that if Moti were deported, he would be escorted by Solomon Islands officials for whom accommodation arrangements were to be made and AU$100 travel allowance per diem was to be paid.  Federal Agent Bond called me later that day to confirm that he could provide no further information regarding Moti’s return at that time.

34.On or about 25 December 2007 I received a telephone call from Federal Agent Bond who advised me that Moti’s deportation papers had been signed and gazetted, and that the flight from Honiara to Brisbane scheduled for that day had been cancelled.

35.At 7:55am on or about 27 December 2007 I was advised by Federal Agent Taggart that Moti was to travel direct from Honiara to Brisbane on a flight scheduled to arrive in Brisbane at 5:50pm that day.  He further advised me of the names of the two officials of the Solomon Islands government who were escorting Moti.  I was also advised that both officials would be returning to the Solomon Islands on a flights scheduled to depart at 9:00am on 29 December 2009.  I then made arrangements to attend the Brisbane International Airport in the company of Federal Agent Scott Dixon to meet Moti upon his arrival.  En route to the Brisbane International Airport I attended the Novotel at Brisbane to make accommodation arrangements for the two travelling Solomon Islands officials.

So at the request of Agent Bond, the Australian High Commission issued Australian visas to a man called Kalita, who was a police officer, and a man called Guporo, who was an immigration officer, and the visas are at appeal book 3, page 1061 for Mr Kalita and 1071 is Mr Guporo.  It is perhaps of passing relevance that two‑thirds of the applications were left blank.  Both were filled in by the same person.  Neither was filled in by the people who were the actual applicants.  So, in the case of Mr Kalita, nothing is ‑ ‑ ‑

FRENCH CJ:   These are actually the applications for the visas, are they not?

MR BARKER:   Yes, your Honour.  Nothing is said about matters such as health, circumstances of character.  It is quite obvious that it was done in a hurry.  Forms are not properly filled out, but it was good enough for the exercise that they were trying to accomplish.  Mr Bond’s evidence about it is at volume 1, page 159, line 10, “they would have asked” – I do not quite know who he is talking about there – but:

The normal protocols in these things are they would ask the High Commission and the Consular officer would make the arrangements.

They asked you to arrange it; did they not?--They possibly did.

Yes.  And “arrange visa” for Billie, and what’s written next?--Then I’ve got dash “passport”-----

Yes?-- -----and then underneath that “immigration officer”. 

He is talking there about his diary.  At line 20:

So I put to you what in fact Wickham was asking you to do was in fact to arrange the visa for Billie and . . . 

That’s what you did, didn’t you? . . . I asked the right person to make the arrangements.

. . . Well, he came to collect them and I – he asked for me and then I gave him his passport.

. . . I think he came to the High Commission and they came and got me and said this police officer’s come for his passport.

. . . 

Who filled in the visa applications for the two escorts?--Well, they should have.

There were two escorts –

Well, they didn’t, and it’s quite obvious I suggest that they didn’t when you – when you look at the handwriting.

. . . 

Now, it is quite obvious that the same hand has filled in both documents; is it not?--Yes, it looks very similar, yes.

And, he read him part of Kalita’s evidence, which I will have to take you to.  Bond said, he was asked:

Now, do you take issue with his evidence where he said that you came back, gave him the form to fill out for a visa?--I can’t recall doing that but I may have.  He may have come there and I’ve provided assistance, given him the form to fill out.

. . . 

The normal process, I’d take them to the Consular officer who was issuing the visas.

Well, evidence has been given that you in fact gave them to Peter Marshall at the airport.  Do you deny that?--Yeah –

Then Ms Bootle, at volume 1, page 380, line 10, was struck by the speed of it all:

I had been quite surprised over the course of that week as to how quickly the Solomon Islands authorities had moved on this matter and how activated they were in making it happen.  It was something that we saw, and that you would see from the previous documentation, that it would take quite some time being a complex legal matter and something that doesn’t happen that regularly – you know, deportations are unusual for us. . . . I think I had been up until that point quite surprised at how fast it was moving.

She said that it would have been unusual to not grant visas to Solomon Island officials, but what business were they on.  She said at 397, line 20:

It would be quite extraordinary not to give a Solomon Islands Government official or member of Parliament, at the end of the day, a visa at their request.

They did not request them.  They simply filled in a form that they were told to fill in.  The business they were on was illegal because they were escorting a person who was not in custody except for the purposes of deportation and we say that the issuing of those visas and the requirement that two people accompany Mr Moti on the flight to Brisbane is a clear indication of direct Australian involvement in the illegal deportation.

GUMMOW J:   At page 381, line 42, volume 1, the witness says:

Our strong preference was expedition.  That was the only matter we were pursuing and we were very clear in making that point to the Solomon Islands Government authorities but they clearly wanted him out ‑ ‑ ‑

HAYNE J:   Is “expedition” accurately transcribed or is it “extradition” having regard to what she says at 396 lines 18 and following.

MR BARKER:   It would be “extradition”, your Honour.  I do not know, they may have entertained that view amongst themselves, but it was not conveyed, at least, not on the evidence we have seen, it was not conveyed to the government of the Solomon Islands a view on the issuing of the request for a provisional warrant in December 2007.  Mr Wickham simply said we are going to deport him, get him on an aircraft and get him out of the place as quickly as possible.  The document of identity is referred to at volume 2, page 629.  This is a cable within DFAT from Honiara to Canberra.  Paragraph 7 on page 629 is:

we have issued a Document of Identity for Moti’s travel to Australia.  AFP SLO will pass the document to the Director of Immigration.

The document itself is at volume 3, page 958.  Your Honours will appreciate that Mr Moti had nothing whatever to do with the issue of it and he was not given it.  Mr Bond talked about it at volume 1, page 162, down towards the end of the page just below line 40:

The issue of a travel – of visas to escort officers and a travel document to the person being escorted back to Australia is a normal process.

He said the same thing at the bottom of page 163.  At 164, at the top of the page:

Anyone who hasn’t got a passport the normal process is to ask for a certificate of identity; is that correct?—That’s correct.

Did Mr Moti ask for a certificate of identity?--I had no communication with Mr Moti.

Oh, come on.  Did Mr Moti ask for a certificate of – this certificate of identity?  That was provided for him?--I don’t know if he asked for it or the Immigration Department, the people deporting him would have asked for it -----

Well, that is precisely what happened.  The people deporting him asked for it, he did not.

Then if we go to Ms Bootle’s affidavit at page 602 of volume 2, paragraph 17:

Late in the evening of 24 December 2007 the post received an instruction from the Department of Foreign Affairs and Trade to issue a document of identity for Moti.  This instruction came in too late to be dealt with on that day.  However a document of identity was issued by the post in accordance with this instruction on 27 December 2007.

She gave evidence about it in volume 1 at page – I am sorry ‑ ‑ ‑

GUMMOW J:   Looking at 629 under the heading “Travel Document”, line 15, it says:

Further to CE566557, we have issued –

MR BARKER:   Yes.

GUMMOW J:   Do we have the document CE566557 anywhere?

MR BARKER:   Yes, that is on page 628, I think.  Volume 4, 1328.  It is to Honiara from Canberra, dated 24 December 2007, “Summary”.

GUMMOW J:   A copy seems to have gone to the Prime Minister, Deputy Prime Minister ‑ ‑ ‑

MR BARKER:   Yes:

Post is authorised to issue a Document of Identity to Julian Moti to enable deportation to Australia.  Validity of document should be limited to that required to enable travel with reasonable contingency period ie one week.  Document should be valid for travel to Australia and any necessary transit points in between.

So we were very active – when I must say “we” I mean Australia – the Government of Australia was very active in this ‑ ‑ ‑

HAYNE J:   Where is the travel document?  You have, I think, told us previously, but can you tell me again?

MR BARKER:   It is at volume 3, page 958.

HAYNE J:   That is valid for a period of two weeks.

MR BARKER:   Well, the cable said a week, but I assume that is the period 27 December to 10 January.

FRENCH CJ:   This is issued pursuant to the provisions of the Migration Act 1958, is that right? Is that how it happens?

MR BARKER:   Yes.

FRENCH CJ:   It does not say anything about that.

MR BARKER:   It might be the Passports Act.  You see, Australia cancelled his passport in 2006, but this information would have clearly come from that document, a cancelled passport.

HAYNE J:   It may be the evidence is silent, but how does the period of currency of the certificate of identity at 958 fit with the instruction issued by DFAT at 1328 with the document:

be limited to that required to enable travel with reasonable contingency period ie one week.

The reason I ask is this, that if he has seven days to exercise or commence proceedings for a review of his deportation, is this document consistent with or inconsistent with the exercise of that right?

MR BARKER:   Neither.  It has become entirely academic because he had been arrested as soon as he stepped foot on Australian soil.  Ms Bootle says something about this at volume 2, page 602.  She was at the time the Acting High Commissioner in Honiara. 

BELL J:   Was that volume 2, page 602?

MR BARKER:   Yes, your Honour.  I am sorry, I think I have already taken you to it, paragraph 17. 

BELL J:   She also gave oral evidence about it.  At volume 1, page 396, line 38 there was re‑examination on the topic and there is a reference there to her having given evidence on the topic the previous day.  I am not quite sure where ‑ ‑ ‑

MR BARKER:   Page 357.

BELL J:   Page 357, is it?

MR BARKER:   Yes, your Honour:

Now, do you recall being requested to supply a certificate of identification for Mr Moti?--Yes, I do.  I do recall that.  I recall being tasked by cable to issue a document of identity.

And when were you tasked to do that?--I recall it was on Christmas Eve.

. . . Our passport’s office in Canberra.

. . . I did check because that is a matter for the Department of Foreign Affairs and Trade.  So I did refamiliarise myself with that.

. . . 

It was a formal tasking cable.

And the identity, the occupant, the document of identity is required for somebody who has not a passport condition hasn’t got a passport; is that correct?--That’s correct.  So for anyone who’s lost their passport or who for whatever reason does not have a passport, then we would issue a document of identity.

And that was required in this case for Mr Moti to allow him to travel to Australia?--Well, that’s the most procedurally correct way to – for an Australian citizen to return to Australia.  It – it simplifies the process.  Australian citizens – there are – Australian citizens could feasibly enter Australia without any document of identity.

. . . if there’s a medical emergency or what have you.

. . . 

one of our roles is the protection and safety of Australian citizens overseas.  So, you know, part of our job is to facilitate their return and entry to Australia, so – but in most – I can’t think of an example of – other than medical where there would have been, you know, an entry without passport.

And in the case of Mr Moti, the airline would have required the certificate of identity to allow him to fly, would it not?--Certainly on most occasions.  I mean, I have to put that caveat on everything in relation to the Solomon Islands because there are occasions we observe on which procedure is not honoured.

Well, save in an emergency, the sort of situation you indicated before, a medical emergency, normally the airline wouldn’t allow a person to fly without a passport or-----?--Normally they wouldn’t, no.

Or if they haven’t got a passport without – that’s the purpose of the certificate of identity, is it not?--That’s correct.  That’s correct, and again we would do those out of hours if necessary.

. . . Who was the certificate of identity given to?--The – I recall the certificate of identity was given to the police.  It was handled by police to police liaison.  That’s my recollection.  Again that’s a bit too detailed for the head of mission.  I would not have been involved in that at that point in time, but I believe it was – there was no – the instruction didn’t give us any – anything in particular in relation to the handing over of that document, and I believe it was it was police to police.

HER HONOUR:   Which police?--Our Australian Federal Police senior liaison officer to the Solomon Islands police.

MR HORE-LACY:   In this case, Mr Peter Bond?--That’s correct, the AFPSLOs, that’s Peter Bond.

Your Honours, we submit respectfully that the proper conclusion to be drawn from all this is that Australia, the Australian Government through its officers, in collusion with the Government of the Solomon Islands through its officers assisted the illegal deportation in a manner which was designed to entirely extinguish Mr Moti’s right to go to court over the deportation order and this was known to the Australian officials, and there are many references throughout the exhibits in respect of the seven‑day period which Mr Wickham said could be ignored. 

Now, there are other matters bearing upon Australia’s involvement which I would like to take you to as briefly as I can.  There is the matter of the giving by Mr Bond to the Commissioner of Police Marshall of legal advice which he knew to be untrue or incorrect.  It is dealt with in our submissions at paragraph 43, in our written submissions, that is:

One powerful piece of evidence to which no reference was made by the Court of Appeal or by Mullins J concerned a conversation between FA Bond and Deputy Commissioner of the Solomon Islands Police Peter Marshall on the morning of the appellant’s arrest and deportation.  In his evidence, FA Bond admitted he had passed on to Mr Marshall ‘legal advice’ from Solomon Islands Government officials to the effect that the planned deportation of the appellant was legal.  Contemporaneous documents authored by FA Bond demonstrate unequivocally that [he] knew the deportation was unlawful.  Yet the spurious legal opinion he conveyed to Mr Marshall was expressed without reservation.

Now, that was, as the submissions say, not referred to at all in the courts below and it is now admitted by the respondent on paragraph 10:

Further as to paragraph 10 of the appellant’s submissions, while it is accepted that Federal Agent Bond attended a meeting on 27 December 2007 with the Solomon Islands Permanent Secretary . . . Mr Wickham, and the then lawyer advising the new Solomon Islands government, Mr Suri (subsequently appointed Attorney-General of the Solomon Islands) and that he was told that the Solomon Island government had legal advice to the effect that the proposed deportation was not unlawful and that he did later pass on the facet that he had been given that information to Deputy Commissioner Peter Marshall at the request of Wickham, it is relevant to note that the same advice had been directly communicated to Marshall by the Solomon Islands government separately from Mr Bond. 

Well, that may be, but it does not detract from the proposition that Mr Bond was actively involving himself in the process of deportation.  What business did he have of passing on legal advice to the Solomon Islands Commissioner of Police, particularly when he knew it was wrong?

KIEFEL J:   Which are the contemporaneous documents which you say show that Mr Bond knew the deportation was unlawful?  Can you just give us references to those perhaps?

MR BARKER:   Yes.  There were quite a lot of them, your Honour.  For example, the one I took you to earlier at volume 3, page 1219 ‑ ‑ ‑

KIEFEL J:   I am sorry, volume 3 ‑ ‑ ‑

MR BARKER:   Volume 3, page 1219, from Mr Bond to Mr Jared, 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 as such.  I can still see this bogging down in court.

There are many other references.  We did assemble some of them in the schedules that I gave to your Honour this morning.  Another example is at volume 2, page 628, which is a cable from Honiara to Canberra.  If you look at the middle of page 629 you will see it was sent by Heidi Bootle, prepared by Amanda Davis and Peter Bond.  It says in paragraph 5:

On our reading, the Deportation Act (s5(3)) gives Moti seven days to appeal to the High Court after being served with a Deportation Order (as noted in HO4654H).  The interim order appears to signal Moti’s intention to appeal.  Mostly likely, we think, would be an appeal under the Deportation Act.  However, we have been told Wickham has instructed Immigration officials accompanying Moti to tell him, if he raises the issue, to “appeal from Brisbane”.

Now, that could not be regarded by someone in Mr Bond’s position as being serious advice.  An appeal could be made after the deportation has been effected after the order has been executed from another country when he is in custody.

GUMMOW J:   Looking at paragraph 43 again of your submissions and paragraph 10 of your opponent’s submissions, and then looking at appeal book 3, page 1196, one sees a communication from Ms Lorraine Kershaw.  Did she give evidence?

MR BARKER:   No.

GUMMOW J:   With a copy to the Foreign Minister.  At paragraph 3, line 50:

In order to minimise the potential for Moti to raise claims of abuse of process . . . posts should maintain their current practice of not volunteering information, or engaging in discussion –

et cetera.  That seems to have been a system that was set up but not observed from paragraphs 43 and 10.

MR BARKER:   It has a rough parallel in Mullen’s Case.  Then could I take you to volume 3, page 901, line 10?  It has been partly censored, but:

- On 14.12.07 SLO was informed by –

someone –

that the new Government would prefer to deport Moti rather than extradite as their view was that Moti would tie up the legal system in appeals for some time to avoid extradition.  (SLO is cognisant of the DFAT cable in relation to not discussing this issue with MP’s and this has been complied with throughout the last 14 months).

The evidence suggests to the contrary.  Another aspect of Mr Bond’s active involvement was his conversation with the Chief Justice of the Solomon Islands, Chief Justice Palmer.  He called on the Chief Justice on 23 December and the Chief Justice gave him a copy of his judgment when he dismissed Moti’s application – a copy of the judgment of 22 December.  He also spoke to the Chief Justice about Moti’s position as Attorney‑General because the Chief Justice was the Chair of the Justice and Legal Services Commission which made recommendations to the Prime Minister about the office of Attorney‑General.  Chief Justice Palmer told Mr Bond the Commission would be advising the Prime Minister ‑ ‑ ‑

GUMMOW J:   Where do we see this, Mr Barker?

MR BARKER:   ‑ ‑ ‑to terminate Moti’s appointment.  At volume 3, page 919.

CRENNAN J:   Sorry, page number?

MR BARKER:   919.

CRENNAN J:   Thank you.

MR BARKER:   I am sorry, you should go firstly to 910.  There is an email of 22 December from Mr Bond to Mr Taggart.  At line 30 he recounts the application to the High Court to Chief Justice Palmer for the injunction.  The next paragraph:

Justice Palmer subsequently denied the Application –

and part of the judgment is recited there.  Line 40:

- At 1500hrs PM Sikua convened a meeting of cabinet.  Following that meeting PS Manele informed –

Acting ‑ ‑ ‑

HAYNE J:   Head of Mission.

MR BARKER:   Home ‑ ‑ ‑

HAYNE J:   Head of Mission.

MR BARKER:   Head of Mission:

A/HoM and SLO that cabinet had determined a two step process in the removal of Moti.  Firstly, Moti’s employment would be terminated through the Judicial and Legal Services Commission; Secondly, the PM directed the Minister for Foreign Affairs to work with the Minister for Justice in progressing Moti’s removal from the country either by the Extradition process or by Deportation.

Then, Sunday, 23 December:

- At 1330hs Mr. Rence Sore, Secretary to the Prime Minister informed the SLO that the Prime Minister had written a letter to Chief Justice Palmer (as Chair of the Judicial and Legal Services Commission) recommending the Commission terminate Moti’s employment.

- Approx 1400hrs Justice Palmer provided the SLO –

that is Mr Bond –

with a copy of his Full Judgement denying Moti’s Application for a Restraining Order . . . 

- Justice Palmer also informed the SLO that he had circulated the PM’s letter regarding Moti’s employment to the five other members of the Commission for their consideration (the seventh member of the Commission is normally the Attorney General) and that all members of the Commission would be meeting with the Prime Minister at 1500hrs that day in the PM’s offices to discuss further.

That, we submit, is further evidence of Mr Bond’s direct involvement.  He was not rigorously abstaining and standing back letting events unfold, he was taking part in them.  The revealing passage in volume 1 at page 199 below line 20:

Now, if I suggest to you that the plan was that Mr Moti would be served as near to the point of departure of the plane as was possible so as to give him no opportunity or a reduced opportunity to access the Courts, do you agree with that?--That was Mr Suri’s view, yes.

. . . 

was it his statement or his advice?--I recall him saying it, that it would be served on the day or as close to-----

. . . 

-----as – of the [departure] of the plane so not to give him access to the Courts?

He did not accept that.  But if you go to page 215, line 30:

Mr Bond, can I suggest to you that after you became aware that the Solomon Islands Government wished to deport Mr Moti you wanted to ensure that Mr Moti was delivered to the Australian Federal Police in Brisbane; do you agree with that?--Yes.

And that’s why you kept the AFP and Australia constantly updated about the flight details?--Yes.

That is further confirmation of the plan and the nature of the plan.

BELL J:   It might also be noted by reference to the document you earlier took us to concerning Agent Bond’s discussions with Chief Justice Palmer, that he was supplied with a copy of the judgment delivered by the Chief Justice on 22 December 2007, which is at volume 2 at 489 and following.  On 491 the Chief Justice makes clear he is refusing an application to restrain the relevant officer from proceeding with making a deportation order.  He then notes at about line 15 the existence of the procedures permitting the applicant to respond to any order that is made and that the rights he had are governed by legislation.

MR BARKER:   Yes, your Honour.  We should include reference to the right to seek a review.

BELL J:   Yes.

FRENCH CJ:   One thing that might be of notice, I notice that under the Australian Passports Act 2005 (Cth), section 9:

The Minister may, on application by or on behalf of a person, and in the circumstances specified in a Minister’s determination, issue the person with a document of a kind specified in a Minister’s determination, being a document issued for the purposes of travel –

and the note to it includes “certificates of identity”.  It would be helpful to know whether that is the only source of power to issue a certificate of identity, because it seems to be conditioned on the application made by or on behalf of a person.

MR BARKER:   Yes.  I will clarify it overnight, your Honour, but certainly this was not issued on the application on behalf of anyone.  There is another incident about which no finding was made which we submit was significant, and that is that Mr Akao said that he spoke briefly to Mr Bond when Mr Moti was about to be arrested and he said, “I will take.....we are going up now”, and Mr Bond said he had better hurry, the aeroplane was waiting.  That was not accepted by Mr Bond, but the two things we say about it, firstly, on a fair reading of the evidence, it should have been accepted and, secondly, there should have been a finding made and her Honour did not make a finding and it would have added to the quantum of matters going to the involvement of Australia in this process.  It is referred to in our written submissions at page 13, paragraph 45.

KIEFEL J:   Were these findings sought?

MR BARKER:   Sorry?

KIEFEL J:   Were these findings sought from the primary judge? 

MR BARKER:   Yes, well ‑ ‑ ‑

KIEFEL J:   I mean, it is not just enough to put a pile of evidence before a first instance judge.  You have to make submissions and ask for findings and if findings are made, you can even ask for further findings, but you are confident that findings were sought?

MR BARKER:   I cannot say to your Honour I have read all the transcript of argument, but the way her Honour approached it suggests certainly that it was sought from her.  We see at page 13 of our written submissions, paragraph 45, one powerful piece of evidence to which no reference was made by the Court of Appeal or by Justice Mullins.  It concerns the – I am sorry, that is not the one.

KIEFEL J:   That is actually a finding by the primary judge, is it not, as concluding that it is in the context?  It is a casual conversation of no significance.

MR BARKER:   That is at paragraph 45?

KIEFEL J:   Yes.

BELL J:   The findings at 1615 in volume 4, it is paragraph 27, her Honour noted that Mr Bond “did not recall saying the words attributed to him” and then describes them as being respective versions of a casual conversation to which she attributed no significance in the circumstances in which it occurred.

GUMMOW J:   Well, the phrase “casual conversation” must have a certain degree of freight, I would have thought.

MR BARKER:   Such a conversation in any circumstance could hardly be described as casual in the circumstances, Mr Akao being an immigration officer and Mr Bond being very interested in Moti’s deportation.  Mr Akao deposed to this conversation at volume 2, page 593, at paragraph 9.  He saw Peter Bond, that is at paragraph 8:

He stopped when he saw us.  I was driving the immigration truck, Elizabeth was in the back.  The man from Isabel was in the front passenger seat.  I stopped and myself and the immigration officer approached Peter Bond.  I heard the immigration officer say to Bond “we are going up now”, Peter Bond said “do it quickly because the plane will be waiting”.  It was a very quick and brief conversation lasting less than a minute.

His evidence is at volume 1, page 82.

GUMMOW J:   Is there cross‑examination on page 593?

MR BARKER:   No.  Page 593, that was his affidavit.

GUMMOW J:   I know, but was there cross‑examination on it?

MR BARKER:   Yes, I am sorry, there was.  Volume 1, page 82, line 20:

But you didn’t hear all of their conversation?--I only know not what the immigration officer said, “We are going up now”-----

Did you hear?--  -----to Moti’s residence.

Did you hear the immigration officer say that?--Yes.

What else did you hear the immigration officer say?--He actually – when we got out of the vehicle he went out first, before me, and I walked behind him, then he approached Peter Bond on the driver’s side and behind Peter Bond and I had – I heard the immigration officer – and Peter Bond said something first and then I heard, “Okay, do it quick because the plane is waiting.”

So you heard the immigration officer say, “We are going up now”?--Yes.

Did you hear him say anything before that?--Not – not too clear.

So there was some conversation before that but you didn’t hear it very clearly?—Sorry?

Then at page 83, line 10:

I only heard the immigration officer said . . . “We are going up now to Mr Julian Moti’s residence”-----

Yes?--  -----and then Peter Bond replied, “Well do it quick because the plane is waiting.”

Well, I suggest to you that Mr Bond never said, “Do it quick because the plane is waiting”?--No, that’s what I heard.

That is where it seems to have finished.  It goes down to line 40.  He again affirms that that is what he heard said.  Mr Bond’s evidence, or his affidavit is at paragraph 2, page 688.  Paragraph 24:

I refer to the Statutory Declaration of Selwyn Akao . . . In response to paragraph 9 of the statutory declaration, I recall stopping my vehicle when I saw the vehicle with the Immigration officers because they waved to me.  I recall one of the officers informing me that they were going to MOTI’s residence.  I do not recall my response but I would not have said “do it quickly because the plane will be waiting”.  I did not say those words or words to a like effect.

His evidence is in volume 1 at page 220.  At line 20:

Now, do you recall him stopping and having a brief conversation with you?--Yes, they waved to me and I stopped.

All right.  Were you driving a Pajero at the time?

. . . 

He said he stopped and approached and the immigration officer approached you.  He heard the immigration officer say to you, “We are going up now,” and you said, “Do it quickly because the plane will be waiting”.  It was a very brief – quick and brief conversation lasting less than a minute.  You were wearing a white shirt.  Now, do you deny that that was said?--I don’t remember – I don’t recall saying those words, no.

. . . I might have said something, “Well, I’ll see you later.  I’ll let you get on with what you’re doing,” something like that would have been more what I would have said.

Well, that’s not the same as saying words to the effect, “Do it quickly because the plane will be waiting”?--I don’t remember saying that, “do it quickly”.

You don’t recall it-----?--No.

-----but you’re not denying that – or words to the effect.  Not the exact words, perhaps, but words to that effect.  In other words-----?--I may have said something like, you know, “I’ll let you get on with your job,” and left it at that.

. . . 

“Get on with your job”.  Do you categorically deny that you in fact said words to the effect,  “Do it quickly because the plan is waiting”?--Well, I can’t see why I would be saying “the plane is waiting”.  If I’m waiting down the road then the plane hasn’t even arrived.

Well, whether the plane had arrived or not, you were down the road – was Mr Marshall with you at this time?--No.

. . . 

No, I don’t recall saying that.

GUMMOW J:   That is different from the last sentence of paragraph 24 on 688.  The last sentence reads, “I did not say those words or words to a like effect.”

MR BARKER:   That is the affidavit I took you to?

GUMMOW J:   Yes.

MR BARKER:   Yes.  That denial was substantially weakened by his inability to remember.  What we submit about that is that it was an important piece of evidence directed to Mr Bond’s involvement and her Honour should have made a finding rather than saying it was just a casual conversation which attributed no importance.  There is something else I want to take you to if I may return to the visas.  In volume 2 at page 588 Mr Kalita said how he got his visa:

2.The permanent secretary Geoffrey Wickham gave the briefing.  He told us that Moti would be deported tomorrow on Tuesday’s flight . . . 

3.        I was also told that Billy –

that is Billy Guporo –

and myself would travel to Australia with Moti.  I was told at the briefing that I should go and see Peter Bond at the High Commission to arrange a visa.  I think Billy told me that.

4.After the briefing I returned to work and I remember someone called me and told me to take my passport to the Australian high commission to get a visa . . . I believe he was a staff officer of the commissioner . . . 

5.I went and got my passport and went straight to the High Commission with Billy.  I got there and asked at the reception for Peter Bond.  I said I was Sam Kalita.  Peter Bond came to the lobby and gave me a form to fill out for a visa.  I filled it out on the spot in the lobby.  I waited there.  It took less than 10 minutes and Peter Bond came back with my passport with a visa stamped [on] it.  I didn’t pay for the visa and I don’t know who did.  Peter Bond said something like, “Julian Moti must leave the country” as he handed me my passport.  I said something like “I will be escorting him”.  Peter then mentioned that he was planning to go to Australia soon for Christmas.  I said “why don’t you come on the same flight with us”, he replied, “no that wouldn’t look straight”. 

Then there are some details about the arrest.  Paragraph 20:

Sally formally arrested Julian Moti.  Immigration people came into the room and took our passports –

Sorry, I have jumped ahead a bit.  This is in Brisbane.  Sally Macdonald formally arrested Moti.  Paragraph 22:

We escorted the other car near the Brisbane Watchhouse and then we drove off to a hotel called the Vonotel.  We stayed there two nights and flew back on Saturday.  We had received per diems from the Solomon’s government but Sally paid our room bills.  We spent a lot of time socialising with Sally and Scott and they paid all our food and drink.  I had a good time in Australia and ate lots of food and drink –

I am tempted to say it is nice that someone enjoyed the exercise.  Could we then go to his evidence, please, in volume 1, page 46.  At line 20 he said he was a police officer.  Line 50:

Before you flew out of Honiara with Mr Moti and Mr Akao, did you sign any application for a visa?

WITNESS:   I did –

Page 47, just above line 30:

Now, Mr Kalita, the application – the application, did you fill any – in any part of that application?

WITNESS:   Not that I remember.  I remember signing those – signing an application, not filling them.  Those writings now on the paper are not mine.

MR HORE-LACY:   Did you sign that application?

WITNESS:   I did.  Those that – that is my signature at the back.

MR HORE-LACY:   Did you fill in any other details in that application?

WITNESS:   No.

MR HORE-LACY:   Now, when did you sign the application?

WITNESS:   On the very day I took the visa from the Australian High Comms Office.

Page 48, line 10:

MR HORE‑LACY:   Who told you to just sign the application form?

WITNESS:   Would have been Peter Bond.

MR HORE‑LACY:   . . . did you sign the application?

WITNESS:   Yes.

MR HORE‑LACY:   It was returned to you?

WITNESS:   It was returned to me about 10 minutes later.

MR HORE‑LACY:   And who was it returned to you by?

WITNESS:   Peter Bond.

So, again this is not something that people who are said to have been the beneficiaries of these documents, the two visas and in respect of motive, the certificate of identity, had anything to do with either applying for them or having them issued or even seeing them.  In my submission, it is strong evidence of firstly, Mr Bond turning a blind eye; secondly, more directly, direct involvement in the whole deal.  It was a deal and could not have been accomplished without Australian support.

FRENCH CJ:   You would accept, I suppose, that if the deportation were lawful Australia would have a duty to receive Mr Moti?

MR BARKER:   I am sorry, I did not hear the first part of that, your Honour.

FRENCH CJ:   That if, assuming the deportation were lawful, Australia would have an obligation to receive Mr Moti with international law?

MR BARKER:   Well, yes, if he arrived in Australia.  It is more likely, had things been done normally, that he would have been deported to his country of origin.

FRENCH CJ:   He is an Australian citizen?

MR BARKER:   He is an Australian citizen.

BELL J:   A carrier would not take him without an identity document.  He did not have a passport so that return to the destination from which he had travelled initially, which I think was PNG, would not have been practical.

MR BARKER:   No.  Well, the deportation order leaves the matter at large and directs that he be put on the next available aeroplane or ship.

BELL J:   But the next available aeroplane or ship might not accept a person who did not have a travel document surely?

MR BARKER:   Well, that may be, but I would like to come back to you about that because I have in mind that there is provision in the Solomon Islands legislation for the issuing of a document to permit people to leave the country.  Could I burden you with that tomorrow, your Honour?

FRENCH CJ:   Do we know from the record, incidentally, when the passport was cancelled?

MR BARKER:   I do not think there is any evidence about that.

FRENCH CJ:   Sorry?

MR BARKER:   I am sorry.  The Papua New Guinea passport?

FRENCH CJ:   No, when his Australian passport was cancelled.

MR BARKER:   Yes, that was in Papua New Guinea in September 2006.

GUMMOW J:   Do we know the grounds on which the passport was cancelled?  There is some evidence about this at appeal book 3, page 1203, line 30:

He attained Australian citizenship on 17 June 1996.  MOTI was the holder of Australian passport number E7556190, issued on 18 November 1999 with an expiry date of 17 November 2009.

MR BARKER:   There is some direct evidence about this.  It was cancelled because he was arrested in Papua New Guinea on a provisional warrant.  He was on his way back from India and the journey was broken at Port Moresby.

FRENCH CJ:   The cancellation has to be under section 22 of the Passports Act, does it not?  Perhaps that is something to look at overnight, but just to know the legal framework within which you are operating for some completeness.

MR BARKER:   Yes, thank you, your Honour.

FRENCH CJ:   That might be a convenient moment.  The Court will adjourn until 10.15 tomorrow morning.

AT 4.14 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 4 AUGUST 2011