R v Lessur-Millar

[1990] FCA 830

8 5 0

JUDGMENT No. ........ ........ .. / ......,....

CATCHWORDS

CRIMINAL LAW & PROCEDURE: Application for prerogative relief restraining the further prosecution of criminal proceedings in Australia on the grounds that the applicant was illegally extradited to Australia.

PRACTICE & PROCEDURE: Whether this proceeding should be perpetually stayed under Order 20 rule 2 - abuse of process - same issues previously raised in New South Wales Courts.

Judiciary Act 1903: S. 39B
Federal Court Rules: Order 20 rule 2.

RICARDO LESSUR-MILLAR AKA: WALTER LEVINGE v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS and NEW SOUTH WALES DIRECTOR OF PUBLIC PROSECUTIONS

LOCKHART J.
23 APRIL 1990

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) No. G813 of 1989
1
GENERAL DIVISION	1

BETWEEN:  RI CARD0 LESSUR-MILLAR

AKA: WALTER LEVINGE

Applicant

AND :  COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS and NEW SOUTH WALES DIRECTOR OF PUBLIC PROSECUTIONS

Respondents

JUDGE MAKING ORDER:	LOCKHART J.
WHERE ORDER MADE:	SYDNEY
DATE ORDER MADE:	23 APRIL 1990

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The proceeding be perpetually stayed.

2. The applicant pay the costs of the Commonwealth Director

of Public Prosecutions of the proceeding. Otherwise, no
order as to costs.

NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	)  No. G813 of 1989

- 1

GENERAL DIVISION 1

BETWEEN :  RI CARD0 LESSUR-MILLAR

AKA: WALTER LEVINGE

Applicant

AND :

Respondents

23 April 1990

REASONS FOR JUDGMENT

LOCKHART J.

The applicant seeks to invoke this Court's jurisdiction

under S. 39B of the Judiciary Act 1903 for an order that a

writ of prohibition issue or an injunction be granted against	the Commonwealth Director of Public Prosecutions restraining
the further prosecution of criminal proceedings against the applicant in New South Wales where he has been charged with a number of offences against both Commonwealth and New South Wales laws. The applicant also seeks an order declaring that his extradition from the United States of America to Australia in 1986 was illegal and that he should be immediately returned to the Republic of Mexico which he asserts is the country of his citizenship. The applicant also seeks the same relief against the Director of Public Prosecutions for the State of New South Wales, but the basis of this Court's jurisdiction against that State officer is not clear. Nor is it clear to me whether the applicant is seeking final or interlocutory relief, but in the light of the conclusions which I have reached in this proceeding it does not matter.
The Commonwealth Director of Public Prosecutions (to whom 1 shall refer as "the respondent") seeks orders that the proceeding be dismissed or permanently stayed on the ground that the doctrine of issue estoppel applies in this case as all material issues of fact and law were decided in prior proceedings involving the applicant. In the alternative, the respondent argues that as the same issues which the applicant seeks to agitate in this proceeding have previously been decided by other courts, it would be an abuse of process to allow this proceeding to continue and thus it should be
dismissed or permanently stayed pursuant to Order 20 rule 2.
Again in the alternative the respondent argues that, since the grant of relief pursuant to the power conferred on this Court by S. 39B of the Judiciary Act is ultimately discretionary, the Court should, in the light of the previous curial history of this case now exercise its discretion to dismiss or permanently stay the proceeding.
The applicant appeared in person and the respondent appeared by counsel. There was no appearance by or on behalf of the Director of Public Prosecutions for the State of New South Wales.
On 5 May 1986 the applicant was extradited from the United States of America to Australia in respect of numerous alleged offences against both Commonwealth and New South Wales laws. The extradition followed the arrest of the applicant by officers of the Federal Bureau of Investigation made in the State of California after Mexican police had expelled the applicant from Mexico. The applicant was subsequently brought before a local Court in New South Wales and charged with a number of offences against both Commonwealth and New South Wales laws and remanded in custody, bail having been refused. The offences with which the applicant is charged are alleged to have taken place in Australia between about March 1980 and December 1981 and relate to alleged participation of the applicant in supplying application forms with false information to various companies advancing credit, providing finance or engaged in retailing.
as suggesting "fraud on a substantial scale". The applicant Smart J. referred to the particulars supporting the charges is also charged on six counts of forgery, four counts of
obtaining money by false pretences and one count of conspiracy to defraud a public authority.
The applicant commenced proceedings in the Supreme Court of New South Wales seeking in substance orders that he be forthwith released from custody and permitted to leave the jurisdiction on the basis that his extradition from the United States was unlawful, that his detention in custody was unlawful and orders prohibiting the further prosecution of the charges against him on the basis that, by reason of the circumstances in which he was brought into this jurisdiction, the further prosecution of those charges would be an abuse of process.
The proceedings were heard by Smart J. who held that the Supreme Court of New South Wales had jurisdiction over the applicant as he was physically within the jurisdiction. His Honour also held on discretionary grounds that relief should be refused and dismissed the proceeding. The applicant then appealed to the Supreme Court of New South Wales Court of Appeal from the judgment of Smart J.
The Court of Appeal (Kirby P., McHugh J.A. and McLelland A-J.A.) dismissed the appeal with costs. Each of their Honours formulated the issues in somewhat different language, but in essence they were as set out by McHugh J.A. as
follows :

I l l .	Was the plaintiff [Mr. Lessur-Millar] illegally expelled from Mexico?
2. If so, was that the result of an agreement with FBI agents?
3. Were Australian Federal Police officers
parties to, or did they connive in, the illegal expulsion of the plaintiff from Mexico?
4. If Australian officers were not parties to and did not connive in the expulsion, are they responsible, for the purposes of this case, for any illegal conduct on the part of FBI agents?
5(a) Was the extradition of the plaintiff from the United States to Australia unlawful?
(b) Was the conduct of Australian officers or those for whom they are responsible such that the prosecution of the charges against the plaintiff should be stayed?"
The facts were stated by McHugh J.A..	I shall mention

some of them. The prosecution alleges that, after committing many serious offences in Australia, the applicant and his wife left this country on 31 December 1981 for the United States of America. Police investigations concerning their conduct began in May 1982. In October 1982 the FBI found that they were living in Mexico, although mail was being addressed to them in the United States. Inquiries also revealed that Mrs Millar and possibly the applicant had been seen in the United States. On 29 November 1983 warrants for the arrest of the applicant were issued in Sydney. After some delay the United States issued provisional arrest warrants in December 1984. On 25 January 1985 a cable from an Australian Federal Police officer in Los Angeles stated:

handling the inquiry into the whereabouts of	'... Det Inspector Adams met with case officers
Levinge and Millar at the San Diego Office of the FBI. It has now been established that Levinge is identical with the person Roessler ... Although
... does not at this time have any current address
for the subjects other than believes they are located somewhere in the Rosarito Beach area just south of the border in Mexico.
...
7. The likelihood of Roessler (Levinge) being in Mexico presents some foreseen difficulties in the question of extradition, however it is considered probable by the FBI agents that he commutes regularly across the Mexican border through Tijuana into San Diego where he is known to have a number of associates and therefore a decision has been taken at this time to allow inquiries to proceed along the present lines of attempting to secure their arrest in the US.'

The meeting of Detective Inspector Adams, an Australian Federal Police officer, with the FBI agents at San Diego, which is referred to in the cable, took place on 24 January 1985. According to a memorandum of 26 January 1985 Inspector Adams stated that he expected something to happen within the next few days. The memorandum also recorded that at 12.50 pm (presumably on 26 January 1985), Detective Inspector Newel1 of the Australian Federal Police, telephoned and stated that the applicant had been arrested and taken into custody.

On 24 or 2 5 January 1985 an FBI agent, Walter Lamar, informed the Mexican State Judicial Police that the applicant and his wife were fugitives from Australia for whom a warrant had been issued in the United States. He requested the Mexican Police to provide the FBI with any information they had in reference to them.

Smart J. found that Lamar was probably aware that the Mexican Police might decide to arrest the applicant and, after some investigation, expel him. His Honour found that it was probable that Inspector Adams was aware that the FBI agents had contacted or were going to contact the Mexican Police for assistance and information in locating them. His Honour said that he inferred that Inspector Adams anticipated that it was likely that the applicant and Mrs Millar would be located and arrested. However, his Honour was unable to conclude whether it was anticipated by Inspector Adams that an arrest would take place in Mexico or on a visit to the United States.

The circumstances of the applicantfs arrest in Mexico are in dispute. According to the applicant he was held in a police station by Mexican police officers for four hours without being charged or served with a warrant and that he was informed that he was being held for the FBI. The applicant alleges that early in the afternoon he saw three men, one of whom he now knows to be Walter Lamar, alight from a sedan. After a conversation between the men and a Mexican officer, the applicant alleges that he observed Lamar pass a quantity of American currency to 'a Mexican public officialf. The applicant believes the sum of money was US$40,000. He observed the official place it in his clothing. He alleges that, shortly afterwards, he was driven by Mexican officers, with another car following, to another police station where he saw another large sum of money being given by Lamar to

border against his will and arrested by agent Lamar.

another man. He was then taken across the United States

In an affidavit filed in proceedings in the United States District Court for the Southern District of California, Walter Lamar alleged that at no time did he request the Mexican State Judicial Police to effect an arrest of the applicant. He said that on 24 January 1985 he contacted the Mexican police and gave them certain information indicating that the applicant was a fugitive from Australia for whom a warrant had been issued in the United States. The Mexican State Judicial Police informed agent Lamar that they were going to take the applicant and his daughter to the International Border Crossing in California and deport him from Mexico 'as an undesirable citizen'.

Smart J. found that, within a relatively short time of the applicant's arrest, the FBI probably told Inspector Adams that the Mexican police had arrested the applicant, detained him, expelled him, and delivered him across the International Border into the custody of the FBI agents. He said that there was no suggestion that any Australian officer went to Mexico or requested the Mexican police to arrest the applicant and to convey him to the USA or that they requested the FBI agents to take any such action.

His Honour found that appropriate warrants having been
issued in Australia and the United States, the Australian
authorities left it to the United States officials to locate

and arrest the applicant and his wife. He found that Inspector Adams kept in touch with the FBI but that he seemed	'to have left the actual location and arrest in the hands of
the FBI	' .

His Honour said:

is hard to imagine this Court ever being able to ascertain fully what took place in Mexico and the United States. The various officers of those countries are unlikely to journey to Australia or otherwise give evidence about these matters. The evidence does not establish any wrongful conduct on the part of the Australian Authorities or that they willingly adopted any wrongful conduct on the part of the US or Mexican Authorities.'

On 3 May 1985 the United States Magistrate for the United States District Court of the Southern District of California certified that the applicant was extraditable to Australia. Subsequently the applicant brought a petition before the District Court for a writ of habeas corpus to challenge the Magistrate's order of extradition. The District Court denied the petition. The applicant then appealed to the United States Court of Appeals for the Ninth Circuit which dismissed his appeal. The conclusion of the Court of Appeals was:

'The magistrate had jurisdiction over appellant despite appellant's expulsion from Mexico. Appellant was found in the United States and was therefore extraditable under the Treaty. The Request for Extradition met the procedural requirements of the Treaty.'"

on appeal from Smart J.'s judgment to the Court of Appeal, Kirby P. said "I would reach the same conclusion as	his Honour [Smart J.] did" in declining to exercise the	relief sought by the applicant. McHugh J. found against the
applicant on each of the issues. McLelland A.J.A. said: "It is impossible to conclude from the evidence in this case that any New South Wales or Federal police officer was involved in any illegality or irregularity which may have occurred in the means by which the appellant was taken from Mexico to the United States."
Following the dismissal of the applicant's appeal by the Court of Appeal steps were taken by the prosecuting authorities to have the committal proceedings listed for hearing. There was a flurry of applications by the applicant before both the Court of Appeal and the local Court seeking a stay of the criminal proceedings pending against him. The Local Court subsequently committed the applicant to the Sydney District Court for trial. The applicant then applied to the Court of Appeal seeking a stay of the criminal proceedings; this application was dismissed on 9 June 1988. The trial was then listed to commence on 5 September 1988 in Sydney. The applicant then applied to the Court of Appeal seeking a stay of the criminal proceedings which was dismissed on 22 August 1988. The applicant then sought a stay from Knoblanche D.C.J. in the Sydney District Court on 5 September 1988. After a hearing before his Honour, which occupied fifteen days for the purpose of determining the permanent stay application, his Honour refused it on 10 October 1988. The applicant then applied to the Court of Criminal Appeal for leave to appeal from the decision of Knoblanche D.C. J.. The Court of Criminal Appeal on 17
February 1989 refused to grant leave to appeal from his Honour's decision. There is no necessity for me to refer to the judgment of the Court of Criminal Appeal.
The applicant then embarked on his next round of curial proceedings and applied to the High Court of Australia for special leave to appeal against the decision of the Court of Criminal Appeal refusing leave to appeal from the decision of Knoblanche D.C.J..
On 2 March 1990 the High Court refused to grant special leave to appeal to the applicant. The High Court said in its reasons for judgment for refusing special leave that, although the question before Judge Knoblanche was not identical with the question which had been decided by Smart J. and the Court of Appeal, there was such a similarity between the questions in each of the two cases that:

"It is not seriously to be thought that the Court of Criminal Appeal would, or should, overturn the decision of Judge Knoblanche which accords with that decision. Even assuming that the grounds assigned by the Court of Criminal Appeal for refusing leave are open to criticism, we do not think it appropriate to grant special leave in order to consider whether the findings of Judge Knoblanche might be overturned if the matter was sent back to the Court of Criminal Appeal for reconsideration of the leave application to that

Court. "

The High Court concluded its reasons with the following

passage:

"Behind the facts in this case there lies a

difficult question of the jurisdiction or the propriety of exercising the jurisdiction of a criminal court over a person who has been extradited here by a sending State after the apprehension of that person by improper means. On that question we express no opinion. However, special leave shall be refused."

It is in the context of the facts and curial history mentioned above that application is made to this Court for orders in effect staying the prosecution of the criminal proceedings in New South Wales against the applicant and declaring his extradition from the United States to this country illegal.

The issues of fact and law which this Court is being asked to decide are essentially the same as the issues determined by Smart J. and the Court of Appeal of New South Wales and correspond closely to the issues decided by Knoblanche D.C.J. and the Court of Criminal Appeal of New South Wales. The applicant is therefore seeking to litigate in this Court the same fundamental issues which he raised unsuccessfully before the Courts of New South Wales.

The applicant sought to establish before this Court that two questions are raised in this proceeding that were not previously decided by any Court, namely, the authenticity of what the applicant described as an "FBI rap sheet" relating to his alleged criminal convictions and the question whether he is a Mexican citizen.

The issue whether the applicant was a Mexican citizen was before Smart J. and dealt with by him. The question	whether the applicant was and is a citizen of Mexico was a
live issue before Smart J. and the Court of Appeal. Kirby P. said:

"The determination of whether or not the appellant was and is a citizen of the United States or Mexico is impossible to make on the materials before this Court. In any case it is not conclusive of any issue before this Court."

The applicant impugns the authenticity and correctness of the " F B I rap sheet". He also seeks to assert that his own attorney relied upon it incorrectly in proceedings brought by the applicant before the United States Court of Appeal for the Ninth Circuit seeking a rehearing of an earlier unsuccessful application by him to the same Court. On 10 April 1986 the United States Court of Appeal for the Ninth Circuit refused the stay which he sought against his extradition to Australia.

I am satisfied that all the essential material relied on by the applicant before this Court has been relied upon by him before one or more of the Courts of New South Wales including the question of whether or not he was and is a Mexican citizen and the significance of the so-called " F B I rap sheet".

The applicant has now been in Australia since his
extradition here from the United States in May 1986. The

processes of the criminal law have been set in motion but

have not reached the stage of a trial, principally it seems	to me because of the applicant's challenges to the validity
of every relevant stage of that process culminating in the unsuccessful application to the High Court for special leave to appeal.
In my opinion there is no material before the Court to support the issue of a writ of prohibition or the grant of an injunction, whether permanent or interlocutory, even taking into account the substantially lower threshold of proof that is required for an interlocutory injunction.
In my opinion no reasonable cause of action has been disclosed, the proceeding is vexatious and an abuse of the process of the Court. Order 20 rule 2 is an expression of the "general principle that the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end": McHenry v Lewis (1882) 22 Ch.D. 397 at 408 per Bowen L.J.
An order under Order 20 rule 2 should only be made in a very clear case: CO-ownership Land Development Pty. Limited v Queensland Estates Pty. Limited [l9731 1 ALR 201; and the power should be exercised sparingly: General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964)
112 CLR 125; H 1976 Nominees Pty. Limited v Galli (1979) 30
ALR 181.
For this Court to allow the present matter to proceed would be to lend its aid to a further investigation of the and to consider granting the relief sought by the applicant
very matters which have been fully considered by Judges at first instance and on appeal in New South Wales and, though a special leave application and not the hearing of a substantive appeal, by the High Court.
No fresh evidence of any probative kind has been placed before the Court additional to what was before the New South Wales Courts.
It is vexatious and an abuse of process for a party, having sued unsuccessfully before the Courts of New South Wales, to seek to agitate the very same issues and facts in this Court. The proceedings, remedies and parties are not precisely identical; but they are in all essential respects the same: see Moore v Inglis (1976) 9 ALR 509 which, though not directly applicable to this case, is akin to it.
I propose to make an order staying the proceeding perpetually. The applicant must pay the costs of the Commonwealth Director of Public Prosecutions of this proceeding. As no appearance has been entered by the New South Wales Director of Public Prosecutions I make no order for costs of that respondent.

the reasons for judgment herein of the	fourteen (14) pages are a true copy of I certify that this and the preceding
Honourable Mr. Justice Lockhart.
Associate Clltl, Y'be,
Date: 23 April, 1990 2

The applicant appeared in person.

Counsel for respondent:	Mr. P.S. Hastings
Solicitor for responent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	5 April 1990
Date of Judgment:	23 April 1990