R v Moti
[2009] QSC 407
•15 December 2009
SUPREME COURT OF QUEENSLAND
CITATION:
R v Moti [2009] QSC 407
PARTIES:
R
(respondent)
v
JULIAN RONALD MOTI
(applicant)FILE NO:
Indictment No 1097 of 2008
DIVISION:
Trial Division
PROCEEDING:
Application for pre-trial ruling
DELIVERED ON:
15 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
16-17 September, 14-16 and 19-20 October and 3-6 and 20 November 2009
JUDGE:
Mullins J
ORDER:
Proceedings on this indictment are stayed as an abuse of process
CATCHWORDS:
EXTRADITION – EXTRADITION TO AND FROM COMMONWEALTH COUNTRIES – OTHER MATTERS – application for stay of indictment on ground that applicant’s deportation from Solomon Islands to Australia was a disguised extradition and an unlawful removal of the applicant from Solomon Islands – where Australian authorities wanted to charge the applicant with seven offences under s 50BA of the Crimes Act 1914 (Cth) and a Brisbane Magistrate issued warrant against applicant on that basis – where Australian Government made a request to the Solomon Islands Government for urgent provisional arrest in Solomon Islands of the applicant pending presentation of formal request for extradition – where deportation order against applicant published in Solomon Islands Gazette – where Solomon Islands Magistrate made an interim order staying the execution of the deportation order – where applicant had a period of seven days under the Solomon Islands Deportation Act to apply to the High Court for review of the deportation order – where deportation proceeded despite interim stay order and without giving the applicant opportunity to apply in Solomon Islands for the review of the deportation order – where Australian High Commission in Solomon Islands issued a document of identity to enable the applicant to leave on an aeroplane from Solomon islands to Australia in the company of police and immigration officers – whether Australian Government connived or colluded with Solomon Islands Government for the deportation of the applicant to Australia
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – AJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – Abuse of process – In general – application for stay of indictment on ground that payments to the complainant and other witnesses undermine confidence in the administration of justice – where applicant, an Australian citizen, charged with committing acts of child sex abuse in Vanuatu where the complainant and her family resided at the time – where complainant a key witness against the applicant in the prosecution of those charges – where evidence of complainant’s parents and brother relied on by the prosecution to provide corroboration of the complainant’s allegations against the applicant – where complainant relocated to Australia for health reasons and counselling – where other family members continued to reside in Vanuatu – where Australia Federal Police (AFP) provided full financial support to the complainant’s parents, the complainant, the complainant’s brother and their dependants pending the applicant’s trial – where quantum of payments to witnesses and their dependants significant – where purpose of financial support to complainant’s family members in Vanuatu to ensure that those witnesses and the complainant remained willing to give evidence against the applicant – whether the payments to the complainant and the other witnesses from her family is conduct that brings the administration of justice into disrepute to such an extent to amount to abuse of process
Crimes Act 1914 (Cth), s 50BA
Criminal Code (Qld), s 590AAAttorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2 ) (1988) 165 CLR 30, considered
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129, considered
Jago v District Court (NSW) (1989) 168 CLR 23
Levinge v Director of Custodial Services (1987) 9 NSWLR 546, considered
R v Carroll (2002) 213 CLR 635, considered
R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, considered
R v Horseferry Road Magistrates’ Court, Ex parte Bennett (No 3) [1995] 1 Cr App R 147, considered
R v Hounsham [2005] EWCA Crim 1366, considered
R v Latif [1996] 1 WLR 104, considered
R v Mullen [2000] QB 520, considered
Rogers v The Queen (1994) 181 CLR 251, considered
Truong v The Queen (2004) 223 CLR 122, consideredCOUNSEL:
J Kennan QC (except for 16-17 September 2009),
D Hore-Lacy SC and P Doyle for the applicant
J V Agius SC and M C Chowdhury for the respondentSOLICITORS:
Worthington Williams Lawyers for the applicant
Commonwealth Director of Public Prosecution for the respondent
The applicant applies for the stay of the indictment presented against him in this court. The application is brought pursuant to s 590AA(2)(a) of the Criminal Code (Qld) (Code) or in reliance on the inherent jurisdiction of the court.
The indictment charges the applicant, as an Australian citizen, pursuant to s 50BA of the Crimes Act 1914 (Cth) with seven counts of engaging in sexual intercourse with a person who was under the age of 16 years, whilst the applicant was outside Australia. Counts 1, 2, 3 and 7 are alleged to have been committed on various dates between 1 May and 13 August 1997 at Port Vila in the Republic of Vanuatu. Counts 4 to 6 are alleged to have been committed on 10, 11 and 12 October 1997 respectively at Noumea in New Caledonia.
Ground for the stay application
The ground for the stay application is that the prosecution of these charges against the applicant constitutes an abuse of process. There are a number of circumstances relied on alone and in combination to support the claim of abuse of process:
(a) the deportation of the applicant was a disguised extradition and an unlawful removal of the applicant from Solomon Islands;
(b) the investigation of the charges was politically motivated and undertaken a considerable time after the dismissal of the charges in Vanuatu;
(c) the prosecution of the charges in Australia which reflect the offences in Vanuatu in respect of which the applicant was discharged in Vanuatu offends the principle of double jeopody;
(d) the arrest of the applicant in Brisbane was unlawful as the warrant was issued when the applicant was not within the jurisdiction;
(e) the payments to the complainant and other witnesses undermine confidence in the administration of justice;
(f) the incomplete and belated disclosure made by the respondent to the applicant for the purpose of the stay application had an adverse effect on the fairness of the hearing of the stay application.
The applicant bases his case on each of the two broad categories of abuse of process identified by Mason CJ in Rogers v The Queen (1994) 181 CLR 251, 256:
(a) vexation, oppression and unfairness; and
(b) bringing the administration of justice into disrepute.
Background facts
In 1998 the applicant was charged in Vanuatu with seven counts of unlawful sexual intercourse with the complainant over several months in 1997, knowing that she was only 13 years of age. These charges were the subject of committal proceedings. A Magistrate found a prima facie case was disclosed and the matter was referred to the Supreme Court of Vanuatu for trial. Ultimately the Court of Appeal of Vanuatu granted an order of certiorari quashing the decision of the Magistrate that committed the applicant for trial and the matter was returned for hearing before a different Magistrate. There were three sexual offences against the complainant alleged to have been committed between May and October 1997 that were the subject of this second committal. The applicant was discharged at this committal on 23 August 1999. As early as March 2001 the Australian Attorney-General’s Department (AGD) had notice of the Vanuatu charges against the applicant, as the AGD received a Mutual Assistance Request from Vanuatu in respect of an investigation involving the applicant and the former Magistrate of Vanuatu who had made the decision discharging the applicant on 23 August 1999.
After the Australian High Commissioner in Solomon Islands in October 2004 expressed concern about the possible appointment of the applicant as the Attorney-General of Solomon Islands and urged an investigation into the applicant’s conduct that had resulted in the Vanuatu charges, the Australian Federal Police (AFP) commenced the investigation against the applicant for possible child sex tourism offences under Australian law.
There was a delay in Australia between May 2005 and February 2006 in pursuing a Mutual Assistance Request with Vanuatu in respect of the investigation. AFP agents travelled to Vanuatu in June 2006 to facilitate the gathering of evidence by members of the Vanuatu Police Force in response to a Mutual Assistance Request from Australia to obtain evidence in support of the investigation of possible charges against the applicant. Affidavits were obtained from the complainant, her parents and her brother. In addition the AFP had copies of the statements of the complainant and other witnesses made in 1997 and 1998. In late June 2006 the AFP referred a brief of evidence to the Brisbane office of the Commonwealth Director of Public Prosecutions (CDPP) for advice as to whether it disclosed sufficient evidence to commence a prosecution. Further evidence was obtained in July 2006. By letter dated 9 August 2006, the CDPP provided advice to the AFP that there was sufficient evidence to commence a prosecution.
On 11 August 2006 AFP agent Mr Dixon swore a first instance warrant for the arrest of the applicant and an Interpol Diffusion Notice was issued against the applicant on 25 August 2006. On 26 September 2006 AFP agent Ms Macdonald made a request for the issue of an Interpol Red Notice which indicated that the requesting country was willing to extradite the person named in the notice. On 29 September 2006 Ms Macdonald swore a second complaint seeking the issue of a warrant for the arrest of the applicant which particularised the offences alleged to have been committed in New Caledonia in addition to the offences alleged to have been committed in Vanuatu. On 29 September 2006 the applicant was in Papua New Guinea and a request was made by the Australian Government for his provisional arrest. That was acted upon and the applicant was detained and then released on bail. His Australian passport was cancelled at this time.
On 2 October 2006 the Australian Government delivered a request dated 1 October 2006 to the Government of the Solomon Islands for the provisional arrest of the applicant, pending a request for extradition. On 6 October 2006 the acting Attorney-General of Solomon Islands, Mr Moshinsky, met with the AFP Senior Liaison Officer (SLO) at the Australian High Commission (the Commission), Mr Peter Bond, and expressed his view that the applicant could not be successfully extradited on the charges because there was a limitation period of one year that was applicable to the equivalent offences in Solomon Islands. The applicant arrived in Solomon Islands from Papua New Guinea and on 11 October 2006 was charged with immigration offences in respect of his entry into Solomon Islands. The then AFP Commissioner gave a speech that was widely reported calling on the authorities in Solomon Islands to move to deport the applicant to Australia because his Australian passport had been cancelled (exhibits 34 and 35). The AFP prepared a Ministerial brief dated 24 October 2006 (exhibit 92) for the Minister for Justice and Customs that reported on the events in Solomon Islands in relation to the alleged illegal arrival of the applicant and the immigration charges. A general comment was made in that Ministerial brief that the AFP and AGD “continue to explore options for Mr Moti’s extradition or deportation from SI to Australia in respect of the child sex tourism charges.” (The applicant places significance on comments in internal Australian Government documents, such as this comment, and the view expressed publicly by the AFP Commissioner which does not reflect the actual contemporaneous communications between the respective Governments of Australia and Solomon Islands.)
The immigration charges were eventually dismissed on 13 December 2006. The Permanent Secretary of the Solomon Islands Department of Justice had met with officers from the Commission about the possible extradition of the applicant and was willing to receive advice from the AGD about the effect of the limitation period in Solomon Islands for like offences on the extradition request. That advice was provided to the Permanent Secretary by the AGD by letter dated 14 December 2006 (exhibit 25). On 15 December 2006 the Australian Government made a full extradition request to Solomon Islands. That was formally rejected by the Solomon Islands Government, but not until September 2007.
On 21 September 2006 the applicant was appointed Attorney-General of Solomon Islands. That appointment was suspended on 4 October 2006. He was re-appointed in July 2007. By 13 December 2007, the Government in which the applicant held the position of Attorney-General had lost power. A new Prime Minister was elected by Parliament on 20 December 2007. The Ministers in the new Government were sworn in on 21 and 22 December 2007.
Deportation from Solomon Islands
In light of the reports that indicated the then Opposition’s intention to deport the applicant should the Opposition come to power, a cable was sent from the Department of Foreign Affairs and Trade (DFAT) Canberra (prepared by Ms Kershaw) to the Commission on 11 December 2007 (exhibit 21) that advised that deportation could be found by a court to amount to an abuse of process, if Australian authorities acted deliberately to circumvent the requirements of domestic laws or treaties governing extradition or participated in an unauthorised and unlawful removal of a criminal suspect from one jurisdiction to another. The advice was given that the Commission should not volunteer information, or engage in discussion, when the issue was raised by Opposition Members of Parliament or any other person in Solomon Islands. Mr Bond in a report compiled on 17 December 2007 (exhibit 12) recorded that he had been informed on 14 December 2007 by a person associated with the Opposition that, as the new Government, it would prefer to deport the applicant rather then extradite, as the view was held that the applicant would “tie up the legal system” in appeals for some time to avoid extradition.
On 21 December 2007 Ms Macdonald swore another complaint seeking the issue of a warrant for the arrest of the applicant. This complaint was required because an amendment was made to the dates relevant to charge 2. A fresh warrant against the applicant was issued by a Brisbane Magistrate on 21 December 2007. The Government of Australia made a request to the Government of Solomon Islands dated 21 December 2007 for the urgent provisional arrest in Solomon Islands of the applicant, pending the presentation of a formal request for extradition, on the basis that he was wanted by Australian authorities for prosecution for seven offences under s 50BA of the Crimes Act 1914. The request noted that if the applicant were provisionally arrested in Solomon Islands, Australia would make a formal request for the applicant’s extradition through the diplomatic channel. The request included a copy of the warrant that was issued on 21 December 2007. The acting Australian High Commissioner, Ms Bootle, together with Mr Bond attended on the head of the Solomon Islands Foreign Ministry on Saturday 22 December 2007 to deliver the provisional arrest request. Ms Bootle stated (at Transcript 10-24) that she made it clear in all official discussions that Australia was pursuing the extradition of the applicant. Later on 22 December 2007 Ms Bootle became aware that the Solomon Islands Government had during a Cabinet meeting decided to revoke the applicant’s appointment as Attorney-General and to take forward his removal from Solomon Islands either by deportation or extradition. Mr Bond reported (exhibit 39) that the Permanent Secretary of the Foreign Affairs Ministry informed Ms Bootle and him that the applicant’s appointment would be terminated through the Judicial and Legal Services Commission.
On 22 December 2007 solicitor Mr Rano appeared in the High Court of Solomon Islands on the applicant’s behalf before the Chief Justice for leave to apply for an order based on rights claimed under the Constitution of Solomon Islands to restrain the Attorney-General (representing the Minister for Commerce, Industries and Employment) from threatening, continuing or proceeding with the deportation and/or expulsion and/or removal of the applicant from Solomon Islands. That application was refused on the basis that the applicant’s asylum status in Solomon Islands was connected to his appointment as Attorney-General which was a matter for the new Prime Minister and Cabinet and therefore a decision of the Executive. The Chief Justice noted in his reasons that the decision of the Government whether or not to grant the extradition request of Australia or to have the applicant deported was a matter for the Government and that there were proper procedures set out for initiating those processes and, once activated, the applicant would have the opportunity to respond to them and any rights he had were governed by legislation covering those processes. An appeal was filed by the applicant against that decision and an interlocutory order was sought from the Chief Justice in his capacity as a single Justice of Appeal on 24 December 2007. That application was dismissed on the basis that the rights that the applicant claimed under the Constitution were subject to the exercise of the discretionary power of the Executive.
On 24 December 2007 Ms Bootle met with the head of the Justice Ministry of Solomon Islands (Mr Remobatu) and gave him copies of the provisional arrest request relating to the applicant and she was informed by him that “It has been decided to pursue Moti’s deportation.” Ms Bootle did not discuss the respective merits of deportation or extradition, as she considered that deportation was a matter for the Solomon Islands Government and not a matter for bilateral discussions (at Transcript 10-28). Ms Bootle also met with the Permanent Secretary responsible for the Immigration portfolio (Mr Wickham) on 24 December 2007 to give him copies of the provisional arrest request and he advised that the applicant had been removed from his position as Attorney-General and would be deported on the grounds that he was an undesirable immigrant, based on the fact that he was wanted by the Australian Government to face criminal charges. He also stated that he would like Mr Bond to accompany the applicant back to Australia with the Solomon Islands immigration officer.
On 24 December 2007 a deportation order was published in the Solomon Islands Gazette in relation to the applicant that recited that the Prime Minister upon the resolution of the Cabinet had advised the Judicial and Legal Services Commission to terminate the applicant’s appointment and employment as Attorney-General and the cancellation of his exemption under the Immigration Act which had applied when he was employed as Attorney-General and authorised and directed any immigration officer or police officer to serve the order on the applicant and to place him on board any ship or aircraft leaving Solomon Islands.
On 24 December 2007 police officer Mr Kalita and immigration officer Mr Guporo (who were to be the officers accompanying the applicant when he was deported from Solomon Islands) attended at the Commission in Honiara to apply for business (short stay) visas. Mr Kalita recalled that it was Mr Bond who gave him the application form. Mr Bond cannot recall doing this (at Transcript 6-14), but conceded that he may have provided this assistance. The applications were processed and the visas issued immediately. Mr Kalita also recalled that Mr Bond handed him his passport with the visa in it. Ms Bootle described how applications for visas were processed by a person employed at the Commission for that purpose (who was not Mr Bond) (at Transcript 9-69) and that it would be extraordinary not to give a Solomon Islands Government official a visa upon request (at Transcript 10-29).
Mr Bond referred in an email that he sent to another AFP officer on 24 December 2007 (exhibit 29) that the Solomon Islands Deportation Act set out that the deportee had seven days to appeal the deportation order and that the view that had been expressed by the Permanent Secretary of the Immigration portfolio that the applicant had his appeal when his application to the High Court had been refused was not correct, as it was not an appeal against a deportation order as such. When Ms Bootle reported to DFAT in the cable sent on 24 December 2007 (HO4654H) on the service of the provisional arrest request and the advice given by Mr Wickham about proceeding with deportation, she referred to the period of seven days which the applicant had under the Deportation Act to appeal to the High Court before being deported. Ms Bootle also referred in this cable to Mr Wickham’s statement that the applicant had no avenue to appeal his deportation, because of his unsuccessful application to the High Court on 22 December 2007. Ms Bootle attached a copy of the Deportation Act to this cable.
Advice was given by the AGD to Ms Bootle and others in DFAT (exhibit 6) that the Commission could issue a Document for Travel which was a one way travel document to allow the applicant as an Australian citizen to travel only to Australia from Honiara. The AGD advised the AFP on 24 December 2007 that Mr Bond should not accompany the applicant when he was deported, because of “Levinge” (exhibit 7), which was a reference to Levinge v Director of Custodial Services (1987) 9 NSWLR 546 (Levinge).
On 25 December 2007 Mr Rano applied on the applicant’s behalf to a Magistrate for an order staying the execution of the order for the deportation of the applicant, pending the hearing and determination by the Court of Appeal of the applicant’s appeal against the Chief Justice’s decision. The defendants named in that application were the Director of Immigration and Commissioner of Police. The Magistrate made interim orders, granting the stay and also restraining the defendants, by themselves or their officers, agents or servants, from entering the applicant’s home for the purpose of effecting service of any documents on him and/or removing or evicting him from his home or approaching the applicant or his home for those purposes or interfering in any way with the applicant’s liberty. A sealed copy of the order was issued by the Magistrates Court on 25 December 2007.
A meeting was held at the offices of the Immigration Department in the evening of 25 December 2007. Present were the Minister of Commerce Mr Francis Billy Hilly, Mr Wickham, the Chief of Staff to the Prime Minister Mr Wale, the then legal adviser to the Government Mr Suri, Deputy Commissioner of Police Marshall and Mr Bond. Deputy Commissioner Marshall and Mr Bond had been at the same Christmas function, when Mr Bond received the telephone call requesting their attendance at this meeting. Deputy Commissioner Marshall described Mr Bond as an observer at the meeting, because that was how Mr Bond described his role to the meeting, and he did not contribute to the discussion.
Deputy Commissioner Marshall stated (at Transcript 3-35) that the advice given by Mr Suri at this meeting was that the stay orders made by the Magistrate that day were not binding on pending Immigration Department actions, as the deportation order, which had not yet been served, was initiated by the Minister and not by the Director who was at a lower level in the hierarchy. Mr Bond had a similar recollection of the advice of Mr Suri and had recorded a note to the same effect in his running diary (p 271 of exhibit 30).
On 26 December 2007 Deputy Commissioner Marshall was shown a copy of the Magistrate’s stay order made on 25 December 2007 by Superintendent Mosese who advised him that the order had been served on the Commissioner of Police who had expressed the view that the Magistrate’s order was flawed, because the High Court had previously rejected the applicant’s application. On 26 December 2007 a Solomon Islands Government official made a request of Mr Bond that the Australian Government provide a charter flight to remove the applicant from the Solomon Islands, but that request was declined. Deputy Commissioner Marshall contacted Mr Bond on 26 December 2007 and requested AFP assistance in providing accommodation and allowances for Mr Kalita and Mr Guporo, because the Solomon Islands Police Force was unable to organise that as the relevant public servants were absent on leave.
On 27 December 2007 Mr Bond attended a briefing at which Mr Wickham was in attendance and Mr Bond noted that Mr Wickham advised that the deportation order against the applicant had been gazetted and only the High Court could review the deportation order, but that the applicant could not go to the High Court until the deportation order had been executed and that the applicant could appeal from Brisbane within seven days of the execution of the order. Mr Bond had recorded that Mr Wickham made a statement to the effect “ignore any court orders” that the applicant had, when briefing the immigration and police officers.
Ms Bootle sent a cable to DFAT (HO4658H) at about 1pm on 27 December 2007 in which she reported on what she had been told by Mr Bond about the arrangements for the applicant’s removal from Solomon Islands on that afternoon, the Magistrates Court interim order obtained by the applicant and that the “Solomon Islands Government remains determined to deport him this afternoon.” A copy of the Magistrates Court interim order was sent by email to DFAT from the Commission at 1:45pm on 27 December 2007. A copy of the deportation order was also sent. Comments were circulated in respect of this cable between officers within DFAT who received it. The Deputy Secretary queried whether AGD had a view about the applicant being deported, despite the stay order, and another officer responded to the effect that AGD advised that it was a matter for the Solomon Islands legal system to be confident it was in accordance with its own processes (exhibit 37).
Police and immigration officers attended at the home of the applicant on 27 December 2007. Deputy Commissioner Marshall drove out along the road to the applicant’s house, but did not proceed to the applicant’s house. Deputy Commissioner Marshall saw Mr Bond’s vehicle parked on the road and stopped and talked to him. It was a chance meeting. Mr Djokovic was driving Mr Rano to the applicant’s home when they saw Deputy Commissioner Marshall and Mr Bond talking to each other. They stopped and had a short conversation before proceeding to the applicant’s home.
Police officer Mr Akao was driving the immigration truck to the applicant’s residence when he saw Mr Bond’s vehicle driving towards the town and Mr Bond stopped his vehicle and the immigration officer and Mr Akao went over to Mr Bond. Mr Akao said that the immigration officer had a brief conversation with Mr Bond in which the immigration officer said “We are going up now” and Mr Bond responded “Do it quick because the plane is waiting.” Mr Bond recalled the chat, but did not recall saying the words attributed to him by Mr Akao (at Transcript 6-74). The respective versions are of a casual conversation to which I attribute no significance in the circumstances in which it occurred.
Mr Rano took a copy of the Magistrates Court order with him to the applicant’s home. He showed the Magistrates Court order to a police officer who said the order was invalid, because the High Court had disposed of the matter.
At the same time Mr Suri made an urgent application to the Magistrate challenging the validity of the applicant’s proceeding brought against the Director of Immigration and the Commissioner of Police and seeking orders discharging the Magistrate’s interim orders. The same Magistrate heard that application, but reserved her decision until the following day.
Mr Rano was given a copy of the deportation order and the police and immigration officers took the applicant into custody. Mr Rano accompanied the applicant in the vehicle that was used to transport him, immigration officers and police officers to the airport. The ABC television news footage of this event (exhibit 50) recorded the applicant’s departure from his house in the vehicle with the officers.
The vehicle drove to the airport where it was directed to the tarmac. Mr Rano saw at least one vehicle from the Commission parked on the tarmac. Mr Rano said that he saw Mr Bond hand documents to Deputy Commissioner Marshall and that he then saw Deputy Commissioner Marshall deliver those documents to the immigration officers. Neither Mr Bond nor Deputy Commissioner Marshall recalled that this happened. Mr Bond recalled (at Transcript 6-15) remaining in his vehicle at the airport and observing what happened. Police officers and immigration officers, including Mr Kalita and Mr Guporo, escorted the applicant onto the plane (which is also seen in the footage in exhibit 50) that then flew to Brisbane. The Commission had issued a Document of Identity for the applicant’s travel to Australia and Ms Bootle had noted in a cable (exhibit 37) that Mr Bond would pass the document to the Solomon Islands Director of Immigration. It is clear that Mr Bond was careful to limit his role at the airport to an observer of the events until the plane carrying the applicant had departed. At some stage Mr Bond must have carried out the task of passing the applicant’s Document of Identity to either Deputy Commissioner Marshall or another official, but that was required to give effect to the purpose of issuing the travel document.
On arrival at the Brisbane airport the applicant was escorted off the aeroplane to a private area where he was arrested by AFP agent Ms Macdonald on the charges that are on the indictment. Ms Macdonald had the warrant for his arrest dated 21 December 2007 and provided him with a copy of the warrant. He was taken to the watchhouse in Brisbane where he was formally charged.
Ms Macdonald provided Mr Kalita and Mr Guporo with $100 each as travel allowance to cover their meals that evening and the following day. On the evening of 28 December 2007 Mr Dixon and Ms Macdonald attended and paid for dinner with both officers from Solomon Islands. The AFP also paid for their accommodation.
Relevant law on “disguised extradition”
The House of Lords confirmed in R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, 62, 68, 73, 84 (Bennett) that a prosecution may be stayed as an abuse of process where the defendant has been brought within the jurisdiction in disregard of extradition procedures. Lord Griffiths (with whom all but one of the Law Lords agreed) stated at 62:
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 Bennett the appellant was a New Zealand citizen who was wanted for criminal offences alleged to have been committed in England. The appellant was in South Africa, but there were no formal extradition provisions in force between the United Kingdom and the Republic of South Africa, although an extradition could have preceded by way of special extradition arrangements under the relevant provision of the Extradition Act 1989. The appellant was arrested in South Africa and was placed on an aeroplane to be deported to New Zealand via Taipei. At Taipei when he attempted to disembark from the aeroplane he was restrained by two South African police officers who said they had orders to return him to South Africa and then to the United Kingdom and hand him over to Scotland Yard. He was returned to South Africa and held in custody until he was placed on a flight at Johannesburg to Heathrow where he was arrested. The House of Lords was considering the jurisdictional question of whether the Divisional Court had power on a judicial review application to determine the appellant’s claim for a stay based on the means by which he had been brought to England. The appellant’s challenge proceeded in the House of Lords on the assumption that the English police took a deliberate decision not to pursue extradition procedures, but to persuade the South African police to arrest and forcibly return the appellant to England, under the pretext of deporting him to New Zealand via Heathrow, so that he could be arrested at Heathrow and that the Crown Prosecution Service were consulted and approved of the behaviour of the police. The House of Lords allowed the appeal and remitted the case to the Divisional Court for further consideration. The decision of the Divisional Court is reported as R v Horseferry Road Magistrates’ Court, ex parte Bennett(No 3) [1995] 1 Cr App R 147. The Divisional Court focused on a document that was created around the time the appellant was removed from South Africa. It was an internal Crown Prosecution Service memorandum that referred to the English investigating police officer providing information that the South African police were putting the appellant “on a plane to NZ which rather conveniently will stop over at Heathrow!” That coupled with the “curious” route of deporting the appellant from South Africa to New Zealand via Heathrow, when no arrangements had been made to transfer the appellant between the airports of Heathrow and Gatwick for the connecting flight to New Zealand, resulted in the quashing of the committal.
Bennett was applied in R v Mullen [2000] QB 520 (Mullen). The appellant was an Irish citizen who had left England for Zimbabwe, after police had found explosives and equipment for making bombs, firearms and ammunition at a flat that had been rented by the appellant for others. The security services of both England and Zimbabwe colluded in order to procure the appellant’s deportation from Zimbabwe in circumstances in which he was denied access to a lawyer. He was tried in England and convicted of conspiracy to cause explosions and sentenced to 30 years’ imprisonment. Subsequently, after obtaining disclosure by the prosecution of the dealings between the English and Zimbabwean security services, the appellant appealed against his conviction based on the circumstances of his deportation from Zimbabwe. For the purpose of the appeal, the appellant conceded he had been properly convicted. The balancing exercise that was undertaken in Mullen was expressed as follows (at 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, to use the words of Lord Steyn in Reg v Latif [1996] 1 WLR 104, 113 ‘so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed?’.”
The court concluded that the discretionary balance came down decisively against the prosecution of the offence and the appeal was allowed and the conviction quashed.
The abuse of process issue in R v Latif [1996] 1 WLR 104 (Latif) arose out the involvement of an informer and a British customs officer in the importation into England of 20kg of heroin for which Shahzad and Latif were charged. Shahzad had approached the informer in Pakistan about exporting drugs from Pakistan to Europe and an arrangement was made between them that Shahzad would deliver the heroin to the informer who would arrange for it to be carried to London. The drugs were delivered to the informer and from there a customs officer collected the packages and took them to England on the instructions of his superiors, but without any licence under the relevant legislation to bring the heroin lawfully into England. The informer went to England and then persuaded Shahzad to come to England to take delivery of the drugs. Shahzad was arrested when he went to England and was about to take delivery of bags which were packed to look like the bags of heroin. The abuse of process was based on the encouragement by the customs officers of Shahzad to commit the offence and that the customs officer who brought the drugs to England himself committed the same offence. On the basis that Shahzad would probably not have committed the offence of which he was convicted, but for the conduct of the informer and customs officers which included criminal conduct, Lord Steyn stated the principle to be applied, based on Bennett, in the following terms (at 112):
“Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed…”
Lord Steyn further refined the balancing exercise in Latif as (at 113):
“But it is possible to say that in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means”
Lord Steyn concluded (at 113) that the conduct of the customs officer “was not so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed.”
The prosecution was challenged for abuse of process in Levinge on the basis of irregularities in the removal of the appellant from Mexico to the United States, before he was extradited to Australia. A warrant was issued in Sydney for the arrest of the appellant for dishonesty offences. He had left Australia for the United States and an extradition request was made by Australia to the United States for the return of the appellant. The Federal Bureau of Investigation (FBI) reported that the appellant was living in Mexico, but crossed the border into the United States from Mexico from time to time, and a decision was made by the FBI to secure his arrest at a time when he was in the United States. The appellant alleged that he was arrested and detained by Mexican police, escorted to the border, and delivered to agents of the FBI who held him in custody until the order was made by the United States courts that resulted in his extradition to Australia. In Australia he alleged that he had been unlawfully extradited and sought an order prohibiting the continuance of the proceedings against him on the ground that they were an abuse of process of the court. The appellant was unsuccessful at first instance and on appeal. The case proceeded in the Court of Appeal on the basis that the appellant had been illegally expelled from Mexico at the instigation of the FBI. Kirby P concluded (at 552) that there was no overt act involving any Australian police in the events which led to the removal of the appellant out of Mexico into the United States. McHugh JA observed (at 565) that no stay will be granted where a person is unlawfully brought into the jurisdiction “unless the prosecutor or complainant is a party to or has connived at the conduct which causes prejudice.” McHugh JA also found (at 565) that there was no evidence that the Australian police were involved in or connived at the expulsion of the appellant from Mexico. The same conclusion was reached by McLelland AJA (at 567) and the appeal was dismissed.
Bennett and Levinge were referred to with approval in the joint judgment of Gummow and Callinan JJ in Truong v The Queen (2004) 223 CLR 122, 161 [96] (Truong). The primary issue in Truong was the construction of s 42(a)(i) of the Extradition Act 1988 (Cth) and the majority comprising four members of the court construed the provision in such a way that they found there had been no breach of it. The dissentients, Gummow, Kirby and Callinan JJ, considered whether there was an abuse of process in the extradition and subsequent trial of the appellant. Gummow and Callinan JJ expressed the issue, based on Levinge, in the following terms (at 161 [96]):
“However, in the present case, it was for the appellant to make a case that there was a deliberate disregard by the Australian authorities and by the respondent prosecutor of the statutory requirements of s 42 or a knowing circumvention thereof.” (footnote omitted)
Kirby J agreed (at 170 [132]) with Gummow and Callinan JJ, substantially for the reasons given by them, that stay for abuse of process was not available to the appellant. Kirby J expressed the preference (at 171 [134]) that the foundation for the provision of a stay was not confined solely to a case where the party against whom the stay for abuse of process is sought has acted deliberately in the misuse of that party’s authority or power. Kirby J further stated (at 171-172 [135]):
“Nevertheless, I accept that the prevention of deliberate misuse of a party’s authority and power is the language in which the provision of a stay has been explained in many cases. Thus McHugh JA, in Levinge v Director of Custodial Services, wrote of whether the prosecutor had ‘knowingly circumvented’ the law. This notwithstanding, the relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.” (footnote omitted)
Although Hayne J was one of the majority, he did express a view on the issue of abuse of process and agreed (at 187 [198]) with the reasons given by Gummow and Callinan JJ. That suggests that the approach in Levinge remains authoritative.
How should the departure of the applicant from Solomon Islands be treated?
The events leading up to the departure of the applicant from Solomon Islands occurred whilst the Regional Assistance Mission to Solomon Islands (RAMSI), a partnership between the Government of Solomon Islands and fifteen contributing countries of the Pacific Region, was in place. Australia is one of the countries participating in RAMSI. The existence of RAMSI and Australia’s role in it does not alter the sovereignty of Solomon Islands as a nation. The communications between representatives of the Australian Government and representatives of the Solomon Islands Government about the removal of the applicant from Solomon Islands must be analysed as dealings between sovereign nations. This was the approach of Ms Bootle who delivered the provisional arrest request relating to the applicant to the relevant officers in the Government of Solomon Islands on 22 and 24 December 2007. Ms Bootle (as the acting Australian High Commissioner to Solomon Islands) otherwise observed and reported to DFAT on events concerning the applicant as they unfolded and allowed the Commission in Honiara to respond to the requests for a travel document for the applicant and visas for the accompanying police officer and immigration officer in the normal course of the performance of the Commission’s functions.
I accept the evidence of Ms Bootle, and it is supported by the documentary evidence, that from the time the Government in Solomon Islands changed on 20 December 2007, the Australian Government was seeking the extradition of the applicant and that no advice was sought by the Solomon Islands Government of Australian officials on the proposal to proceed with deportation of the applicant or how the Deportation Act applied to the deportation of the applicant. Any views formed by Ms Bootle, Mr Bond or others within DFAT, the AFP or the AGD on the interpretation of the Deportation Act were views that there was no obligation or duty to convey to the Solomon Islands Government.
Although Mr Bond was present at a number of critical meetings and briefings involving Ministers and employees of the Solomon Islands Government, I am satisfied that was by invitation of the relevant officials and the opportunities were used by Mr Bond to report to the AFP on the steps being taken by the Solomon Islands Government in relation to achieving the removal of the applicant from Solomon Islands which was an announced objective of the new Government of Solomon Islands. As revealed by contemporaneous emails (such as exhibit 29), there was no doubt a degree of enthusiasm on the part of Mr Bond and the colleagues in the AFP with whom he was communicating in Australia for the departure of the applicant from Solomon Islands to Australia to occur. I am satisfied, however, that this enthusiasm did not result in Mr Bond taking any role in the events on Solomon Islands that resulted in the applicant’s deportation, other than as an observer who was keeping the Commission and the AFP informed of the events.
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: Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (No 2) (1988) 165 CLR 30, 40-41.
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: Giorgianni v The Queen (1985) 156 CLR 473, 482. That approach is inappropriate for analysing the conduct of sovereign nations and is not consistent with the approach in Bennett, Mullen and Levinge.
As the decisions that resulted in the deportation of the applicant were those of the Solomon Islands Government, the fact that the Australian Government did not in the circumstances object to the deportation of the applicant, who was an Australian citizen, to Australia (and to that end responded to the decisions of the Solomon Islands Government by providing travel documents for the applicant and the escorting officers) cannot 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 to the applicant that may arguably have occurred in the Solomon Islands.
Motivation for and delay in investigation
The applicant relies on the fact that he was discharged at committal on 23 August 1999 in Vanuatu and the investigation of the same conduct by Australian authorities commenced early in 2005 after representations made by the then Australian High Commissioner to Solomon Islands who expressed concern at the possibility of the applicant being appointed Attorney-General of Solomon Islands and who recorded claims by informants that the applicant was “anti-Australian” and “anti-RAMSI”. The first contact by the AFP with the complainant was not until June 2006.
Despite the manner in which the investigation was prompted, the evidence of Ms Macdonald and the documents relating to the investigation that have been disclosed by the AFP show that the prosecution of the charges proceeded after independent investigation by the AFP of the allegations and evaluation of the AFP brief of evidence by the CDPP and that the decisions to pursue the charges and the prosecution have been made in the normal course of the work of those agencies. As was submitted by the respondent, there is no evidence of any impropriety associated with the AFP’s approach to the investigation of the conduct of the applicant that is the subject of the charges. This makes the motivation for the original referral of the allegations against the applicant to the AFP irrelevant to the continuation of the prosecution.
The delay in the investigation of the allegations by the AFP has to be considered in the context that the AFP was able to obtain copies of the original witness statements made in 1997 and 1998 and some supporting documentary evidence. The length of time since the alleged conduct has not reached the stage where a fair trial of the charges is precluded.
Double jeopardy
Although the applicant concedes that double jeopardy does not strictly apply to the prosecution of these charges after the dismissal of like charges at committal in Vanuatu, the applicant relies by analogy on the principle of double jeopardy, relying on the approach taken in R v Carroll (2002) 213 CLR 635 (Carroll) and the observations made in that case about what can constitute abuse of process. In particular, Gleeson CJ and Hayne J stated at 650-651 [47]:
“Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.” (footnote omitted)
Gaudron and Gummow JJ made a similar observation on the power to stay an indictment to prevent abuse of the court’s process at 657 [73]:
“The power to stay is said to be discretionary. In this context, the word ‘discretionary’ indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not.”
On the basis that the main rationale of the principle of double jeopardy is the unwanted harassment of a defendant by multiple prosecutions concerning the same factual allegations, the applicant submits that in view of the failure of the prosecution in Vanuatu to challenge the dismissal of the charges against the applicant at committal, the bringing of these charges in Australia based on largely the same evidence is oppressive. The applicant contends that the proceedings commenced against the applicant in Vanuatu put his position outside the circumstances for which the offence in s 50BA of the Crimes Act 1914 (Cth) was introduced, as explained in the second reading speech of the then Minister for Justice, Mr Kerr, in the House of Representatives on 3 May 1994 (Parliamentary Debates at p 73):
“The bill aims to ensure that cowardly crimes committed against children outside Australia which are not prosecuted in the country in which they were committed can be prosecuted effectively in Australia.”
The respondent relies on the fact that the proceedings in Vanuatu were not a trial of the charges and the fact that the prosecution in Vanuatu did not pursue the charges is irrelevant to the question of whether the applicant has previously faced trial for the substance of the allegations involved in these charges.
The clear words of s 50BA do not warrant reading down the provision to limit its application to the circumstances that were referred to in the second reading speech. The dismissal of the charges in Vanuatu at committal does not mean that the bringing of the charges on this indictment offends the principle of double jeopardy, whether directly or by analogy.
Whether arrest unlawful
The applicant claims that the warrant used to arrest the applicant in Brisbane was issued on 21 December 2007 when it was known that he was not within the jurisdiction. The complaint of Ms Macdonald that was sworn to support the issuing of the warrant disclosed that an extradition request had been sent to Solomon Islands from Australia requesting the applicant’s extradition to face the subject charges and that request was refused in September 2007, but a new Government was elected in Solomon Islands on 20 December 2007 and the new Prime Minister had indicated that the Cabinet would decide over the period 22 to 24 December 2007 whether the applicant would be returned to Australia by extradition or deportation. The Magistrate who issued the warrant could not have been misled about the location of the applicant in Solomon Islands at the time the warrant was sought. It was sought and issued in anticipation of being executed on the return of the applicant to Australia from Solomon Islands. The complaint of Ms Macdonald disclosed a case against the applicant for the offences under s 50BA of the Crimes Act 1914 which by virtue of s 68(1) of the Judiciary Act 1903 (Cth) and s 57(a) of the Justices Act 1886 (Qld) supported the issue of the warrant by the Magistrate.
Payments to the complainant and her family
The complainant came to Brisbane in October 2006 for the purpose of giving statements to the AFP and CDPP. At that time the complainant raised concerns about her safety in Vanuatu. Ms Macdonald in a memorandum dated 20 October 2006 recorded that there was no evidence of an actual threat against the complainant, but noted that the complainant definitely “perceived” that she was under threat from the applicant. It was suggested that a “witness management approach” was appropriate, as the complainant did not qualify for witness protection. The complainant stayed in Australia for some months from October 2006 and the AFP and CDPP shared the cost of providing the complainant with accommodation and financial support during that period. During 2007 the complainant returned to Vanuatu.
The complainant and her family were still residing in Vanuatu, when the applicant was arrested in Brisbane. On 24 December 2007 the complainant had raised with the AFP that she wanted to come to Australia for protection until the end of the trial, and that her family must come with her and that if she could not be brought to Australia she would withdraw from the case. On 3 January 2008 the complainant’s father conveyed information to the AFP that his capacity to engage in business in Vanuatu was adversely affected by the publicity given to the involvement of his family in the allegations against the applicant. He advised that he had significant debts. He advised that although the complainant wished to proceed with the prosecution, she and the family needed support. The complainant and her father raised the possibility of their family being brought to Australia.
In January 2008 Ms Macdonald and Mr Dixon visited the complainant’s family’s plantation in Vanuatu to evaluate their needs. Ms Macdonald described health issues affecting the complainant and her parents in the memorandum that Ms Macdonald prepared dated 8 January 2008 to report on the visit. The report also dealt at length with the business difficulties for his family that the complainant’s father claimed were caused by the publicity during 2007 about the extradition request of Australia to Solomon Islands in respect of the applicant. The complainant’s family also claimed they had significant debts for rent and living expenses, had no income and were selling off household items. Ms Macdonald’s report concluded by noting that the prosecution of the applicant depended on the complainant’s evidence and was corroborated by her family members. In connection with the consideration by the AFP of how the AFP would respond to the complainant’s request for support, AFP agent Mr Taggart made inquiries of an AFP agent in Vanuatu about the minimum wage. Mr Taggart received an email on 15 January 2008 (exhibit 86) which stated:
“Minimum wage is 20,000vt a month (AUD240) for a 40 hour week. That is under the Vanuatu Labour Act which was reviewed in 2006.”
After the AFP obtained independent legal advice (which was the subject of a claim for legal professional privilege in this proceeding), the AFP proposed from February 2008 to provide witness support to the complainant, her parents and her brother to meet their living costs. Ms Macdonald was not involved in working out the quantum of the payments to the complainant and her family members or in making the decision to make those payments, but she did say that the decision was made by someone at a higher level and on the basis of independent legal advice from senior counsel that the payments should be for “sustenance only” (at Transcript 10-72). In fact, Ms Macdonald referred in a subsequent memorandum dated 15 January 2009 (at p 48 of tab 3 of exhibit 43) that the witness support payments for the complainant and her family members “were reviewed by CDPP and advice was given that they were to be subsistence payments only and not to exceed $6725 per month for the whole family.”
The complainant had come to Australia in January 2008 for medical treatment and stayed in Australia, while the rest of the family witnesses remained in Vanuatu. An Assistant Commissioner of the AFP sent a letter to each of the complainant, her parents and her brother dated 22 February 2008 indicating the terms on which the AFP was prepared to provide witness support. The letter to the complainant described the financial support for her as a witness was being provided on the basis that she remain in Australia for the purposes of obtaining ongoing counselling support and medical treatment not available in Vanuatu and the payments were required to be acquitted each month against actual cost of living expenses. The complainant’s financial support included rental assistance, living allowance support including a dependant allowance (in relation to the complainant’s child) and victim counselling support. The letter explained that the fortnightly support payment had been assessed based on the Australian Government support agency Centrelink standards.
Each of the letters to the complainant’s parents and brother (exhibit 85) recited that the AFP was aware that the circumstances of the witness was such that it had not been possible for him or her “to provide for the minimal daily needs of you and your dependant[s]” and that the AFP was prepared to provide financial and welfare assistance to cover the cost of living expenses whilst the witness was unable to do so himself or herself and was a witness in the applicant’s matter. Each of these letters also stated that an agreed monthly support payment for the expenses specified in the letter had been assessed “based on an accepted cost of living assessment (Attachment A)”. The letter to the complainant’s brother described that he would be provided support as a witness for food, medical expenses, disposables such as clothing and personal items and was calculated to allow for his dependant wife and two children. The breakdown of the amounts apportioned to each of those expenses was set out in attachment A to the letter, but without any explanation as to how the AFP had come up with the estimated amount of each expense. The letter to the complainant’s father gave him financial support as a witness for the same type of expenses. The letter to the complainant’s mother gave her financial support as a witness for the same type of expenses and, in addition, for rent and utilities for the family and an education allowance for her three daughters. There were also breakdowns of the amount of each expense item set out in the attachments to the letters to the complainant’s parents, but also without any indication of the source of the information that had been used by the AFP for the “accepted cost of living assessment.” The extent and nature of the breakdown (which is not expressly compared with any benchmark or cost of living assessment) is illustrated by the contents of attachment A to the letter to the complainant’s mother:
“Expense (estimate) Month
Rent 800.00
Utilities
Water 15.00
Electricity 200.00
Gas(Cooking) 30.00
Phone 190.00
Food 240.00
Medical 20.00
Disposables(hygiene etc) 160.00
Transport (taxi, private) 20.00
Total 1485.00
Dependent allowance x3
(School Age)
Food 160.00
Medical 30.00
Education (x3) 60.00
Disposables 80.00
Total: 990.00
TOTAL MONTHLY AMOUNT: AUD $2475.00”
The complainant’s parents and brother were also required to acquit the monthly payments from the AFP against actual cost of living expenses. The letters to each of the complainant’s parents and brother specified that the support arrangements were provided on the basis that the adult members of the family would make all reasonable efforts to seek paid employment or other means of support that would lead to an improvement in their ability to support themselves. Each of the letters to the complainant, her parents and her brother concluded with the following statement:
“The provision of this support by the AFP should not and is not intended to influence in anyway the evidence that you give in this matter.”
Monthly payments commenced in February 2008 at the rate of $2,480 to the complainant, $1,290 to her brother, $480 to her father and $2,475 to her mother, making a total monthly payment of $6,725. Mr Taggart noted in his email dated 1 February 2008 (exhibit 73) by which he was seeking approval within the AFP for witness support in these amounts that “[t]he monthly support payments for these expenses has been assessed based on an accepted cost of living assessment by Post and IPP, and will be acquitted on a monthly basis against actual costs.” Reference was made in the email to “[t]he proposal to provide witness support is based on AFP practice in previous TSETT matters.” Ms Macdonald explained (at Transcript 10-93) that TSETT referred to the AFP’s Transnational Sexual Exploitation Team that deals with child sex tourism matters, prostitution and trafficking matters and explained that there were guidelines for providing financial support to victims of prostitution trafficking who remained in Australia and were given housing and education support and Centrelink benefits based on a single supporting parent’s pension. Ms Macdonald did not believe that the guidelines for the victims of prostitution trafficking extended to providing payments for witnesses other than the victim (at Transcript 10-97). Ms Macdonald expressed the opinion (at Transcript 10-75) that the payments for the benefit of the witnesses in Vanuatu were to meet the expenses of maintaining those witnesses, so they could live and be available to attend court for the applicant’s trial.
Apart from disclosure of the email received by Mr Taggart on 15 January 2008 (exhibit 86), the details of the assessment of the costs of living for the complainant’s family in Vanuatu were not before the court. There was no memorandum tendered setting out the method of calculation of each of the expenses included in the monthly payments proposed for each of the complainant’s family and no identification of which AFP officer did the calculations. The email dated 15 January 2008 was ambiguous, in that it was not clear whether the minimum wage of 20,000 vatu per month equated to AUD$240 for a month or for a 40 hour week. Further information about exchange rates (exhibit 94 and 95) obtained after the hearing was concluded confirmed that 20,000 vatu equated to AUD$240, making the minimum wage in Vanuatu in 2006 AUD$240 per month.
In July 2008 the complainant’s family members were evicted from the premises in which they had been residing in Vanuatu. Rent had been outstanding for some considerable time, including the period of four months in which the complainant’s mother had been receiving funding for rent and utilities from the AFP. The family relocated to a tin warehouse where they lived rent free in difficult conditions. The complainant’s mother sent an email on 10 December 2008 to an AFP agent based in Vanuatu that explained the family’s living conditions and stated:
“And not only that, we must try to have or create our own income before the case… Can someone of the AFPorDPP department tell me how we can do it specially after all the publicity we had on this affair??? Before we had a contract with Aveda Corporation and because of this affair, we lost it. Again, we had a contract for beautification with plants and before we start the second one, we lost it. Now, we are back to square one with no possibility to earn a decent living. And do you think that it is a privilege or a facility we had from Australian government? Some of the AFP/DPP staffs think that way. They even said that <WE ARE LUCKY COMPARE TO THE OTHERS IN THE SAME SITUATION.>
You must remember that we didn’t ask for anything. We were trying to restart a new life until it came out in the newspapers. AFP approaches us and it was too late to back off as we were put in front A FAIT ACCOMPLI. We go through all the pains again and no stop until today.”
By January 2009 the family in Vanuatu needed to find new accommodation. It was organised that the AFP would lease a property on behalf of the family and pay the rent direct to the real estate agent. That was reflected in the terms of a letter sent by the AFP to the complainant’s mother dated 13 March 2009 (included in exhibit 85). The rent for what was described as “a modest furnished house” was $1,570 per month (at p 60 of tab 3 of exhibit 43). The real estate agent conveyed to Ms Macdonald that when he met the complainant’s mother she told him that her family was “under AFP protection” (at p 51 of tab 3 of exhibit 43).
In the latter half of 2008 the complainant’s brother and his wife and two children moved out of the accommodation occupied by the rest of the complainant’s family and sought funding from the AFP for his own family’s accommodation (exhibit 67) which was $254 per month including electricity. Ms Macdonald provided the following information in her memorandum dated 15 January 2009 for seeking an increase in the witness support payments of the complainant’s family in Vanuatu:
“Consultation with staff at the Australian High Commission found that the cost of living in Vanuatu has increased approximately 20% over the past 12months since the introduction of an import tax. On 14 Jan 2009 The Vanuatu Post Newspaper reported the cost of rice alone has increased by 60%.”
The complainant’s brother and his wife had a third child in early 2009 and his support from the AFP was initially increased by $524 per month in 2009. (There may have subsequently been a reduction when he and his family returned to live with his parents.)
The complainant gave birth to her second child in late 2008 and the AFP reviewed her witness support in mid 2009 and made a lump sum back payment and increased her fortnightly payment from $1,240 to $1,433.
An indication of the statutory authority that was relied on by the AFP for the payments made to or for the benefit of the complainant’s family in Vanuatu is found in one of the disclosed documents (at p 40 of tab 3 of exhibit 43) which was an approval of a proposal to spend public money in accordance with regulation 9 of the Financial Management and Accountability Regulations 1997 (Cth) and s 44 of the Financial Management and Accountability Act 1997 (Cth). An AFP officer who is an approver for the purpose of regulation 9 gave approval on 30 March 2009 for the payment of the school fees for the children of the complainant’s mother and attested that she had made all reasonable inquiries to satisfy herself that the expenditure was in accordance with the policies of the AFP and the Commonwealth, would make efficient and effective use of public money and was consistent with the terms under which the money was held by the AFP. The restriction on approval of a spending proposal under regulation 9 and s 44 of the Financial Management and Accountability Act 1997 is that the proposal must be a proper use of Commonwealth resources, meaning efficient, effective and ethical use that is not inconsistent with the policies of the Commonwealth. The fact that an AFP officer completes a standard form to make a payment that is within the terms of the package of financial support for the complainant’s family that the AFP agreed to provide does not address the underlying propriety of the witness support package.
One of the documents disclosed by the AFP to the applicant was a brief by the AFP to the Minister for Home Affairs prepared in July 2009 about this proceeding against the applicant. It was in that Ministerial brief that the AFP had recorded that to the date of the brief, AFP witness subsistence payments for the five witnesses and their six dependants amounted to approximately $129,000. The applicant’s tendered documents obtained from disclosure by the AFP also included a summary of the costs relating to the operation concerning the applicant (at p 76 of tab 3 of exhibit 43) that had a summary of costs for YTD 2009/2010 and for 2007/2008. That summary included expenses other than witness payments, such as travel costs for Federal agents and did not include the costs for the year 2008/2009. I was unable to reconcile that summary with the figure of $129,000 referred to in the Ministerial brief. I caused inquiries to be made of the parties about these discrepancies. As a result, a schedule of payments made to the complainant and her parents and brother was provided by the respondent to the applicant in November 2009 and was tendered as exhibit 91. It showed the total amount of payments made to the complainant for 2007/2008, 2008/2009 and 2009/2010 as $67,576.26 and the total amount paid to her parents and brother during the same financial years (which covers a period of about 21 months from February 2008 to November 2009) as $81,639.25. The complainant’s family in Vanuatu had provided some receipts to the AFP for their living expenses (in Vanuatuan currency) that were included in exhibit 90 and analysed in the spreadsheet that was exhibit 89.
The fact and quantum of the payments to the complainant and her family was flagged by the applicant as an issue on the stay application in his summary of grounds in support of the stay application that was dated 19 August 2007. That summary raised two aspects in relation to the payments:
“7. The prosecution is only proceeding now because the Commonwealth has met the alleged complainant's demands (to prevent her withdrawing from the case) to
make payments to her and other witnesses.
8. The payments made and other benefits provided or promised by the Commonwealth to witnesses in the circumstances of this case undermine confidence in the courts and the rule of law.”
The issue on this stay application in relation to the payments to witnesses was expanded upon in the particulars of grounds for stay application that was also dated 19 August 2009. The respondent replied to those particulars and disputed the evidentiary basis for the applicant’s allegations in respect of the payments to the witnesses and alleged that any payments were appropriate in the circumstances. It is therefore surprising that it was difficult to ascertain from the documents that were produced on the respondent’s side for the purpose of the hearing the exact quantum of the payments made to the witnesses and that there is limited material on how the expense items included in the witness payments to the complainant’s family in Vanuatu were originally calculated. Although this is not a judicial review application in relation to the decision to make the payments, the stay application does raise for scrutiny the circumstances of the arrangements entered into by the AFP with the complainant and her family members.
Documents were tendered by both parties after the hearing had concluded to address the standard of living in Vanuatu in the years in which the AFP has provided witness support payments to the complainant’s family. It is not necessary to recite the details of this further material. It highlighted the lack of detail about original assessment of the payments to be made to the Vanuatu witnesses. During a further hearing on 20 November 2009, I suggested that on the basis of the material that had been disclosed by the respondent and tendered on the hearing, the investigation by the AFP of what amount was required by the complainant’s family to live in Vanuatu was superficial. That remains my conclusion after reflecting on the evidence adduced on the hearing and the further documents tendered after 20 November 2009 (exhibits 96 to 101). The payments made to the complainant’s family members may be described by the AFP as subsistence payments, but there is no justification in the AFP material for that description. The extent of the living expenses provided for by the AFP exceeds subsistence payments.
The question that arises on this stay application is whether the payments of the sums paid to the complainant and the other witnesses from her family is conduct that is either so oppressive in relation to the prosecution of the charges against the applicant to amount to abuse of process or is conduct that brings the administration of justice into disrepute to such an extent to amount to abuse of process.
The applicant submits that the circumstances and quantum of these payments to the complainant and the other witnesses from her family adds to the vexation and oppressiveness of the prosecution against him. The applicant also relies on these payments to assert that it should scandalise the court to entertain a prosecution based on evidence that, effectively, has been bought by the AFP. It is submitted that the complainant’s parents and her brother and their families are continuing to live and work in Vanuatu and there is no justifiable reason in connection with the prosecution for the payments to be made by the AFP to support them, other than for the purpose of keeping the complainant satisfied and willing to give evidence against the applicant. It is suggested that if the court does not sanction this conduct by ordering a stay, the precedent will be established for witnesses and their relatives to demand money from the police under threat of withdrawal from a prosecution.
The applicant relies on R v Hounsham [2005] EWCA Crim 1366 (Hounsham). The appellants were convicted of conspiracy to defraud arising out of their participation in a dishonest scheme involving the acquisition of vehicles that were used in staged road traffic collisions that were then the subject of inflated claims against insurance companies. The insurance companies that had paid out on the claims made by the appellants had paid sums to the investigating police force, at the force’s request, to assist in funding the arrest stage of the investigation. The trial judge had refused the appellants’ application for the proceedings to be stayed as an abuse of process. The prosecution accepted that the police were acting outside their powers when they accepted financial contributions towards the expense of the investigation. As the trial judge had found that the police officer who requested the funding from the insurance companies had acted in good faith, the Court of Appeal concluded that the conduct of the police fell far short of the conduct which led to the proceedings in Bennett to be stayed and for the conviction in Mullen to be quashed and rejected this ground.
The respondent argues by analogy that payment of expenses to witnesses, even extravagant payments, are in principle no more significant than the expectation of a reward for the giving of evidence and that is a matter that is relevant to the jury’s consideration of the reliability of the evidence (as was suggested in R v Oliver (1984) 57 ALR 543, 547-548), but is not the basis for staying the prosecution. The respondent meets the contention that the witness payments bring the administration of justice into disrepute by arguing that, if it were concluded that the circumstances and amount of the witness payments were unacceptable, it is not an endemic problem and the court’s disapproval of the conduct could be shown by comments to that effect and ordering that the continuation of the prosecution be conditional on the cessation of the payments, rather than by ordering a stay of the indictment.
The evidence that is able to be given by the complainant’s parents against the applicant covers their meeting the applicant early in 1997 and engaging in business dealings with the assistance of the applicant, the occasions when the complainant or the complainant and her brother stayed at the applicant’s house and their dealings with the applicant during the period in which the offences are alleged to have occurred. There were also some dealings after the relationship between the complainant’s family and the applicant ended. The complainant’s brother was aged between 15 years and 16 years when the offences were alleged to have occurred. He is able to give evidence of where he says he, the applicant and the complainant slept when he stayed over at the applicant’s house and what he says he saw and heard. These family members are relied on by the prosecution to provide some corroboration of the complainant’s allegations against the applicant.
The fact of the witness support payments has been disclosed to the applicant and would be an appropriate topic for cross-examination of the complainant and her family members who are also witnesses. To the extent that the payments made by the AFP to the complainant and the other witnesses are challenged by the applicant on the basis of oppression, any issue raised as a consequence about the reliability of those witnesses and their willingness to give evidence against the applicant can be properly tested in cross-examination and the subject of directions to the jury by the trial judge. That does not deal, however, with the applicant’s argument based on the policy consideration that the court must uphold the administration of justice.
Gleeson CJ and Hayne J referred to the competing policy considerations that arise in criminal proceedings in Carroll at 643-644 [23]-[24]:
“[23] It is, nonetheless, important to recall that the four considerations which we have mentioned (the imbalance of power between prosecution and accused, seriousness for an accused of conviction, prosecution as an instrument of tyranny and the importance of finality) are not the only considerations which find reflection in the criminal law system. At the very root of the criminal law system lies the recognition by society that some conduct is to be classified as criminal and that those who are held responsible for such conduct are to be prosecuted and, in appropriate cases, punished for it. It follows that those who are guilty of a crime for which they are to be held responsible should, in the absence of reason to the contrary, be prosecuted to conviction and suffer just punishment.
[24] Reference to the general propositions we have mentioned is important not because the answer to the issues now being considered can be found by deductive reasoning which takes any or all of them as a premise but because they are values to which the criminal law can be seen to give effect. They are values that may pull in different directions. There are, therefore, cases in which a balance must be struck between them. To take only one obvious example, it is accepted that in order to acquit the innocent, some who are guilty will go unpunished. But conversely, to punish the guilty, some who are innocent will suffer the very real detriments of being charged and tried for an offence they did not commit. It follows that to argue from any one of the considerations we have identified to some rule of universal application is to invite error.”
The majority judgment in Williams v Spautz (1992) 174 CLR 509, 518-521 also deals with the jurisdiction of the court to grant a permanent stay of a criminal proceeding for abuse of process. The policy considerations that must be taken into account in dealing with abuse of process in criminal proceedings are set out at 520:
“The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.”
The majority judgment expressed the view at 522 that the power of the court extends to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case.
In the discussion by Mason P in Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134 about the application of the abuse of process doctrine to criminal proceedings, the following observation is a reminder of the care with which the power to stay a criminal proceeding must be exercised:
“No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last-mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes. For that reason the power to order a permanent stay is reserved for the extreme case: Jago v District Court (NSW)(1989) 168 CLR 23 (at 34), per Mason CJ; see also the English cases cited by Powell JA as to the power being ‘very strictly confined’.”
The decision in Jago v District Court (NSW) (1989) 168 CLR 23 (Jago) was an endorsement by the High Court of the existence of the jurisdiction to stay criminal proceedings, although it was recognised (at 31, 60, 76) that a stay would be ordered only in exceptional circumstances. Jago was concerned with extreme delays in the prosecution of the charges and the statements of the members of the court about the exercise of the jurisdiction to stay the proceeding were concerned with balancing the right to a fair trial and the public interest consideration of the prosecution of criminal charges.
The approach to the balancing of public policy considerations that was undertaken in Latif (at 113) is also relevant to this matter.
The offences with which the applicant is charged apply only where the alleged offending conduct is committed by an Australian citizen outside Australia. The offence will therefore usually involve complainants and witnesses who are not easily available to the Australian criminal justice system.
The complainant is the key witness against the applicant as the alleged victim of child sex offences and her relocation to Australia for health reasons and counselling is unremarkable. Her being supported by the AFP whilst in Australia pending the applicant’s trial on these charges is arguably a different situation to that which applies to her parents and her brother. At least the respondent can rely on the TSETT guidelines to justify the package of support provided by the AFP to the complainant and her two children whilst they reside in Australia. The complainant is living in a country which is foreign to her on a criminal justice visa and is dependent on the support of the Australian Government to enable her to meet the cost of living in Australia. Because of the conclusion I have reached about the AFP payments to support the complainant’s family members living in Vanuatu, it is not necessary to reach a concluded view on whether the AFP payments to support the complainant amount to an abuse of process. My provisional view is against that conclusion.
There are no similar guidelines to the TSETT guidelines for providing financial support for ancillary witnesses who are themselves not the victims of the alleged sexual offending. If the applicant had not been charged with these offences, the complainant’s parents and her brother would have had no choice but to continue with living their lives and supporting themselves in the country where they were entitled or chose to live. The fact that the publicity surrounding the charges against the applicant may have had an adverse effect on the capacity of the complainant’s parents to pursue their business interests could arguably justify some humanitarian support for the complainant’s family in Vanuatu. What seems to have occurred, however, is that the AFP has assumed the role of providing full financial support to sustain the lifestyle and activities of the complainant’s family in Vanuatu. The payments made to or for the benefit of the complainant’s family in Vanuatu since February 2008 are related to their requirements and are not merely subsistence support.
Despite the AFP asserting in the letters sent to the complainant’s parents and her brother that the financial support given to them was not intended to influence the evidence given by them against the applicant, the giving of the financial support was made after a threat by the complainant and her family members to withdraw as witnesses and was given at a level that was intended to provide full support for all living costs for the duration of the period until the trial was concluded. To the extent that the terms of the support required acquittals and that the complainant’s parents and her brother seek employment, the evidence does not suggest that those terms have made any practical difference to the continuation of the financial support, other than when the rent support was discontinued upon it being ascertained that the complainant’s parents had not been using the funds provided for rent to meet their rent expense.
I am satisfied that the purpose that the financial support has been given to the complainant’s family members in Vanuatu is to ensure that those witnesses and the complainant remain willing to give evidence against the applicant. The level of the financial support is of great concern and the expectation it has created on the part of the complainant’s family in Vanuatu that the support remains ongoing whilst the prosecution continues. What would the complainant’s parents and brother have done to support themselves since February 2008, if the AFP had not provided full financial support of them and their dependants? It raises questions about the integrity of the administration of the Australian justice system, when witnesses who live in a foreign country, where it is alleged an Australian citizen committed acts of child sex abuse, expect to be fully supported by the Australian Government, until they give evidence at the trial in Australia of the Australian citizen. The conduct of the AFP in taking over the financial support of these witnesses who live in Vanuatu is an affront to the public conscience. It squarely raises whether the court can countenance the means used to achieve the end of keeping the prosecution of the charges against the applicant on foot.
The assumption by the AFP of the responsibility of providing total living support for the complainant’s parents, her brother and their dependants in Vanuatu brings the administration of the justice system into disrepute. In considering what weight should be attached to that factor, the AFP’s attitude to disclosing its decision making in relation to the calculation and the quantum of the payments made to the witnesses in Vanuatu is relevant. The position of the AFP can be distinguished from the police force in Hounsham where there was a positive finding that the police officer who had requested the impugned funds from the insurance companies had acted in good faith. The only inference that is reasonably open about the AFP’s decision making in relation to the payments to the witnesses in Vanuatu is that it is directed at the continuation of the prosecution against the applicant. The policy consideration raised by the conduct of the AFP in providing full financial support of the Vanuatu witnesses has to be balanced against the nature and the seriousness of the charges against the applicant and the public interest in ensuring that those charged with serious offences proceed to trial on those charges. Seven counts of unlawful sexual intercourse with a child under the age of 16 years put the charges against the applicant in the very serious category. The public interest in regulating the behaviour of Australian citizens overseas in respect of child sex offences is high. The public interest in ensuring that criminal charges in Australia for such alleged conduct proceed to trial is an important policy consideration.
The weighing up of these policy considerations that pull in different directions has not been an easy task. To decide that the importance of ensuring that those charged with criminal offences proceed to trial prevails may suggest that the court will overlook the lengths to which the AFP has gone in this matter to keep the Vanuatu witnesses (and therefore the complainant) willing to give evidence against the applicant by taking financial responsibility for the Vanuatu witnesses and their dependants. On the other hand, if the prosecution of the applicant does not proceed to trial, the complainant’s allegations will not be dealt with publicly at a trial and the prosecution will lose the opportunity of endeavouring to prove that the applicant is guilty of the charges.
Although it is only in exceptional circumstances that abuse of process justifies staying an indictment, I have concluded that the balancing of the various policy considerations favours the applicant over the prosecution. In the circumstances, the appropriate sanction for that abuse of process is to stay the indictment. The seriousness of the abuse of process would not be acknowledged appropriately by any other order.
Incomplete and belated disclosure in respect of the stay application
The transcript of the hearing of the stay application reflects the legitimate complaints made by the applicant during the course of the application about the timing and extent of the disclosure made by the CDPP for the purpose of the application and the response of the AFP, DFAT and AGD to subpoenas issued in connection with the application. Disclosure was still being made on the day of final submissions and after final submissions. Although the submission was made on behalf of the applicant that the incomplete and belated disclosure to the applicant made the fair hearing of the application impossible, the disclosure and production of subpoenaed documents eventually addressed the matters of concern that were raised by the particulars of the claim of abuse of process. The observation can fairly be made that the applicant’s lawyers were deprived of the opportunity to conduct the application in an efficient and expeditious manner by the late disclosure (as was the respondent to some extent), but ultimately the applicant and his lawyers managed to put before the court and test the evidence relevant to the issues raised by the claim of abuse of process.
Order
Apart from the discrete circumstances relied on by the applicant to support the claim of abuse of process that are summarised in paragraph [3] above, there were aspects of the prosecution case, such as the number of times the complainant had sought to withdraw from the prosecution and that she had admitted to giving false evidence as a child in the Vanuatu proceedings, which were relied on by the applicant to support the claim of abuse of process based on vexation, oppression and unfairness. I am not satisfied that those additional matters constituted oppression or unfairness, but in any case, they could not otherwise be taken into account when I have found that none of the discrete circumstances could constitute abuse of process based on vexation, oppression and unfairness. I have found, however, that the payments by the AFP to the witnesses who live in Vanuatu bring the administration of justice into disrepute to such an extent that the applicant must succeed on his claim of abuse of process on that basis.
The proceedings on this indictment are stayed as an abuse of process.
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