Moti v The Queen [2011] HCATrans 96 (8 April 2011)

Last Updated: 14 April 2011

[2011] HCATrans 096

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No B47 of 2010

B e t w e e n -

JULIAN RONALD MOTI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 10.34 AM

Copyright in the High Court of Australia

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

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR M.C. CHOWDHURY, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Mr Barker, I think you have indicated to us that you are not pressing certain aspects of the application for leave and special leave questions.

MR BARKER: Yes, your Honour. There was argument in the Court of Appeal about whether the present applicant could raise matters which were found against him by the primary judge and it is referred to - - -

GUMMOW J: We have seen to that. Looking at the draft notice of appeal on page 61 it is ground 2(4), is it - ground 2(4), that is out?

MR BARKER: Yes. There is no argument about the matters in contention because there was no finding by the court below. One judge found for us, one judge against us and one did not find at all.

FRENCH CJ: What is ground 2(3)? That is a sort of a vibe-type ground, or?

MR BARKER: Yes, it is dependent upon other grounds. We say that the totality of the treatment of the person points to injustice, that the other grounds are more specific.

FRENCH CJ: Yes, all right. I think you had effectively excluded 1(d) from your summary of argument under the definition of the “Special Leave Questions”?

MR BARKER: Yes.

FRENCH CJ: In the application for special leave you were not relying on 2(2), is that right?

MR BARKER: Yes.

FRENCH CJ: Yes, all right. Mr Agius, it might assist us to hear from you first as to why special leave should not be granted, having regard to the basis upon which Mr Barker is now proceeding.

MR AGIUS: Thank you, your Honours. Your Honours, in our submission, the law relating to the operation of the discretion to stay the prosecution is well settled and the Court of Appeal in this case followed an orthodox approach in reviewing the decision of the judge at first instance. It identified a number of errors in the first instance judge’s reasoning on the question of whether the payments made amounted to an abuse of process, such that the only remedy was to prevent the law from taking its course and putting the applicant on trial.

Those errors were a failure to distinguish between circumstances where the payments made induced the making of a complaint or the provision of a statement by a complainant, on the one hand, and where the payment is to ensure that a non-compellable witness – because that is what the complainant was – attends court to give evidence in a trial conducted according to law. The second error was the failure to recognise the significance of the fact that the payments made were not illegal and the third error was that it was not open to conclude that the payments brought the administration of justice into disrepute.

The Court of Appeal also recognised and applied the principle that a stay of prosecution was a remedy of last resort and in coming to that conclusion the court enforced and drew attention to decisions of this Court in Jago and Williams v Spautz and statements in Batistatos v RTA. In that regard we refer to our outline of submissions at application book 77 and 78.

It is our submission that the Court of Appeal was right to hold, in substance, that whatever the conduct of the Australian Federal Police was in making the payments to the witness that conduct fell short of establishing that the process of the court was itself being wrongly made use of. By then we had a situation where the complainant and other witnesses had already provided their statements and to the extent to which the complainant was saying that she would not give evidence at court unless she was paid a particular amount in relation to her sustenance and the sustenance of her family, those payments were made not with a view - and indeed there was no evidence or finding to this effect – to inducing the witness in any way to do anything other than to give the evidence that she had already said was true in respect of a trial where the applicant had been found to have a case to answer.

There was a committal for trial in these proceedings. The payments were designed to assist the court to exercise its jurisdiction. They were not secret payments. The payments are available for the applicant to make such use of as he wishes during the course of the trial. They could be used to attack the credit of the complainant. The evidence of them can be called before the jury but in no way, in our respectful submission, could it be said that the fact that the Australian Federal Police determined to pay this complainant in excess of what might be absolutely necessary for her sustenance that that would in effect mean that the applicant should not be brought to trial.

That would be to put the control of the administration of justice in that respect into the hands of the Australian Federal Police because of their overpayment of witness sustenance matters. That would not be an appropriate basis for a court to refuse to exercise its jurisdiction. The sort of conduct in Ridgeway was much worse than this conduct and a stay was refused in that case simply on the basis that the police had engaged in unlawful conduct. Here, there is no finding even of unlawful conduct.

That was a much graver case as well because the unlawful conduct did not go to a peripheral issue relating to the payment of sustenance payments to a witness but went to the elements of the offence which was the importation of the drugs for which the accused was charged and was going to be brought to trial. If that case was not sufficient to substantiate and validate the use of the power to grant a stay then, in our respectful submission, the Court of Appeal in this case was right to correct the decision of the judge at first instance.

For those reasons, there not being any error of principle identified in the decision of the Court of Appeal, it is our respectful submission that this would not be an appropriate matter for the Court to grant special leave on that issue.

GUMMOW J: What do say about the circumstances of the rendition of Mr Barker’s client to this country?

MR AGIUS: Your Honour, the findings of fact by the judge at first instance and also by the Court of Appeal are that the Australian authorities were not collusive in the decision to deport the applicant. That was a decision made by the Solomon Islands Government. It was an act of a foreign state. Her Honour had the evidence of what the foreign state had done and, in our respectful submission, correctly determined not to rule on whether or not the foreign state had deprived the applicant of rights in the Solomon Islands.

The matter was approached in a different way. Her Honour set about examining whether or not any agent of Australia had colluded in that decision to deport the applicant and her finding, as a matter of fact, after a long trial and having seen the federal agent involved examined and cross-examined and having seen all of the evidence, including all of the cables and all of the emails, she determined, with respect, as a matter of fact, that there was no collusion in the decision to deport.

The only possible matter that my friend can point to as indicating some complicity, as he would contend, with respect, is the issue of the travel document, but the travel document that was issued was issued after the decision to deport had already been made. In our respectful submission, her Honour found as a fact that the issue of that travel document did not of itself amount to complicity in the decision to deprive the applicant of his rights in the Solomon Islands.

The issue of the travel document came about on the facts because the applicant had surrendered his passport in Papua New Guinea as a condition of his bail when he had been arrested there a year earlier, or two years earlier, and the Australian authorities had sought to extradite him from Papua New Guinea so he then absconded on bail, left his passport behind in Papua New Guinea, arguably illegally arrived in the Solomon Islands –whether that was illegal or not is not to the point but he came without his passport, so he had no passport.

There was evidence before her Honour which unfortunately did not find its way into the application book. I have extracted just three pages of that evidence which explains why it was in those circumstances a state such as Australia would not refuse a request from the Solomon Islands to issue a travel document. Four copies, I understand, are required. I have extra, if necessary.

FRENCH CJ: Thank you, Mr Agius.

MR AGIUS: This is the evidence of Heidi Bootle who was the Acting Head of Mission at the time and the relevant evidence begins at about line 40 on page 10-28 and goes through to line 20 on page 10-30. Might I just allow the Court a few moments to read that?

FRENCH CJ: Yes, just give us a couple of minutes, thank you.

GUMMOW J: This was in re-examination, was it?

MR AGIUS: Yes, it was, following cross-examination on these points by counsel for the applicant.

FRENCH CJ: Yes.

CRENNAN J: How does the evidence of Mr Bond relate to this issue?

MR AGIUS: The evidence of Mr Bond was that as the liaison officer he was asked to attend meetings by Solomon Island authorities where what they were going to do was discussed and her Honour made findings as to the reason for his attendance at those meetings and ultimately concluded that he was there was an observer and his presence there did not make him party to any arrangement by the Solomon Island’s authorities to deport rather than extradite the applicant. My learned friend included in his booklet containing authorities a number of emails. That is a booklet entitled “Applicant’s Authorities Index”. We are indebted to him for that.

Could I ask the Court to go to the last two pages which is an email from Mr Bond, the Federal Police officer in the Solomon Islands, reporting back to the Federal Police in Canberra? There he reports what he was told at the meeting – and this makes absolutely plain our point, with respect, and confirms the factual finding of her Honour – that the decision to deport was a decision of the Solomon Islands Government. It also makes plain that the Australian authorities in the post, in the Solomon Islands, were being told by the Solomon Islands Government that they regarded what they were doing as lawful. Although people in the post had their own view as to whether or not what was happening in the Solomon Islands was or was not lawful, what they were being told by the Solomon Islands was this is a lawful matter.

The act of state doctrine would prevent - and properly in our respectful submission – the judge from inquiring into whether or not what was happening in the Solomon Islands on this decision to deport, regardless of Australia’s request for extradition - and there were repeated requests for extradition – and the evidence was that Australia persisted with its request for extradition right up until the time that it was told that the applicant would be deported and the findings are that it never sought deportation.

The situation so far as the applicant was concerned was that he – and, indeed, Australia – was that the applicant was the subject of a decision by government, he being the Attorney-General of the previous government, that they did not want him in the Solomon Islands any longer. His employment was terminated. His right to stay in the Solomon Islands was linked to that employment. He was an Australian citizen, without passport, without visa and without any basis upon which he could maintain his right to stay in the Solomon Islands and the Solomon Islands did not want him there any more.

Against that background, the only thing the Australian authorities did is provide a travel document after the decision had been made to deport him and after they had been told by the Solomon Islands that they regarded their act in deporting him as a lawful act. Those were the facts found by her Honour and, in our respectful submission, they support the factual findings that her Honour made at paragraphs [41] through to [45] at application book 18 and 19 in her judgment. She concludes that:

There was no act . . . which fixes -

the Australian Government with responsibility for -

any denial of rights . . . in the Solomon Islands.

We do not simply rely on the fact that that is a finding of fact but it is important to recognise that was a finding of fact and it is also important to recognise that, to the extent to which there is any act at all that is in any way connected to the deportation, that act, the provision of the document, the identity document, was made after the Solomon islands had already determined to deport Mr Moti.

If one accepts the evidence of Heidi Bootle, and it is apparent that his Honour did, she speaks favourably of that witness at the top of application book 18, then it would have been, as a matter of foreign policy, diplomatic policy, just unprincipled and unheard of for Australia to deny the issue of a travel document to one of its own citizens, at that time.

GUMMOW J: Who was Mr Taggart?

MR AGIUS: Mr Taggart was an Australian Federal Police officer who sat at what was called the Pacific Desk at the Australian Federal Police Head Office.

GUMMOW J: Who was Mr Peter Bond?

MR AGIUS: Mr Peter Bond was an Australian Federal Police officer who was attached to the mission as a liaison officer who liaised with Solomon Island police officers and people of that nature.

GUMMOW J: I am just looking at this communication at the bottom of page 244 of the bundle.

MR AGIUS: All of those persons who either received the email or who were copied in on the email were, I am instructed, Federal Police officers. The point of it being that – this is not to say that Australia was not interested in what was happening to one of its citizens - after all, Australia had been pressing for this man’s extradition for some years. It was very interested and it had a public interest.

GUMMOW J: What was the “sake of expediency” referred to there?

MR AGIUS: That was not Australia’s expediency, that was the expediency of - - -

GUMMOW J: It was our view of their expediency, is that right?

MR AGIUS: Our view of their expediency because he had been Attorney-General in the former government, not a Member of Parliament but appointed as Attorney-General. He came from a political direction which was opposed to the new government which had only been in government for about four days and they, it seems, for reasons of their own, were determined to not just have him removed as Attorney-General, which they did, but to also have him out of the country.

GUMMOW J: What is the phrase “it’s not over yet” directed to? Is there any indication of that?

In any case, could you please point this out to Ossie that it’s not over yet.

MR AGIUS: Because at that time, at 12.05 pm on Monday, 24 December there is evidence that the Australian authorities in the Solomon Islands had already been told that the decision of the government, before it was in government, was to deport Mr Moti and there was an expectation, perhaps a premature expectation by Mr Bond, that Mr Moti would be deported and that contrary to Australia’s wishes to have him extradited that was the path that the Solomon Islands had determined to take.

So the Australian Federal Police, as a matter of administration, had an interest in having someone meet the plane when Mr Moti arrived in Australia. That was their administrative and practical interest in the matter. What is important is the finding that they had no role to play in the decision to deport him. One would expect the Federal Police, in any circumstances, to be interested in the arrest of somebody who was wanted for such a serious offence.

What my friend cannot get past is the email of 24 December which corroborated Mr Bond and Ms Bootle that the decision to deport was a decision of the Solomon Islands. This is a very difficult matter to deal with on a special leave application where the Court does not have access to the whole of the evidence, but her Honour had that advantage. There were a number of cables and a number of emails which the Court does not have. There was also a deal of evidence from Mr Bond, which her Honour had access to.

FRENCH CJ: The Solomon Islands officer, Wickham, requested the Federal Police to accompany the applicant on the plane back to Australia.

MR AGIUS: Yes. At first Mr Bond thought he could do that but there is other evidence which indicates that that message was sent to Australia and the advice came back from Attorney-Generals to the post saying, “No, he

cannot be escorted back. In fact, you cannot travel on the same plane that he is coming back on”, and that advice was a reference to Levinge.

FRENCH CJ: He was accompanied by someone from Solomon Islands immigration.

MR AGIUS: Two officers from the Solomon Islands - one immigration, I think, and one police. Mr Bond, who was due back in any event, came on a later plane because it was Christmas time. Mr Bond’s travel back to Australia was not related to the applicant’s travel back or to the deportation. In fact, the permanent head of mission had also travelled back to Australia, leaving Ms Bootle with the reigns.

There was evidence and I think there is a chronology of sorts in the application book which indicates that Australia was persisting with – I see the light is on. Mr Ellicott often gets by by ignoring that light. Can I have - - -

FRENCH CJ: I think you should probably – I think you have probably told us all we need to hear for the moment, Mr Agius.

MR AGIUS: I am indebted. Can I just finish that sentence by saying that it is not referred to in the chronology but there was evidence that Australia was still pressing and distributing copies of his extradition application after it had learnt that the Solomon Islands had determined to deport Mr Moti.

FRENCH CJ: Thank you, Mr Agius. Mr Barker, we will be assisted to hear from you in relation to the ground 2(2) of the draft notice – that is the extradition question.

MR BARKER: Yes. Thank you, your Honour. The vibe question does intrude into this because it is put - - -

FRENCH CJ: Can we slice that out, it is - - -

MR BARKER: If your Honour looks at the application book at page 75, line 30, the DPP says:

It is accepted that the Australian High Commissioner to the Solomon Islands, Mr Cole, on a number of occasions requested the AFP to investigate the applicant, and that the motivation was largely to prevent the applicant from becoming the Attorney General in the Solomon Islands.

That was in respect of matters which were dealt with in Vanuatu 10 years previously. Going straight to the question of rendition, we say firstly that Justice Mullins, the primary judge, was wrong in holding that the conduct of the Solomon Islands Government was not justiciable in an Australian court and she does so at page 18, line 40. She went on again, wrongly, and the error is propounded by my learned friend, to say there was no evidence of relevant conduct on the part of Australian officials of connivance in the conduct of the Solomon Islands Government.

The Court of Appeal skirted around the issue of justiciability by finding there was no commission by Australian officials of any conduct on the part of Solomon Islands. Justice Holmes said at page 50:

the argument that the learned primary judge should have scrutinised the conduct of the Solomon Islands Government can have no force if there was no involvement of the Australian Government in that conduct.

Of course, that raises immediately a question, how can a court determine a question of collusion in conduct without knowing what the conduct was. The question of whether the Solomon Islands acted illegally must be examined to determine whether Australia connived in it. We have cited Levinge v The Queen and we have cited your Honour Justice Gummow’s judgment in Re Ditfort; Ex parte Deputy Commissioner of Taxation and it is perfectly clear, we submit, that in a case of this nature which involves the conduct of Australian officials and involves the conduct of the Executive Government under section 61 of the Constitution, it involves a Federal Court, it involves an Australian citizen brought forcibly into the jurisdiction, it would be very strange if the Supreme Court of Queensland did not have jurisdiction to examine the conduct of those in the Solomon Islands. As Justice Perram said in Habib - which is the judgment we gave to your Honours apart from the others - - -

GUMMOW J: At [2010] FCAFC 12; 183 FCR 62.

MR BARKER: Yes, thank you, your Honour. He said at page 72, paragraph 24:

The act of state doctrine - whatever it might be - has no application where it is alleged that Commonwealth officials have acted beyond the bounds of their authority under Commonwealth law.

Your Honour Justice Gummow dealt with that in Ditford’s Case at pages 367 to 369.

GUMMOW J: Now, you take up this matter at page 85 in your reply at paragraph 11. Would it need to find its way into a ground of appeal or is it picked up by ground 3?

MR BARKER: It would be picked up by ground 3. I am alert to the possible dangers that might be seen as a vibe.

FRENCH CJ: Ground 3 does not really give any respondent a warning.

MR BARKER: Ground 2 gives the particulars of what is claimed. Your Honour, my learned friend is quite right. It is difficult to deal with this on a special leave application which I suppose is a reason why special should be granted but, in our submission, it is beyond argument that the Government of the Solomon Islands acted unlawfully in deporting Mr Moti and the Commonwealth of Australia, through its officials, principally, Mr Bond, was present at almost every step and they acquiesced in it and turned a blind eye to it.

The whole object of the exercise was to get Mr Moti within the jurisdiction of an Australian court so the case against him could be thereby prosecuted. The deportation was in defiance of a magistrate’s injunction which stayed the pending of the hearing of an appeal against a refusal of the High Court to restrain the Attorney-General from proceeding with the deportation. The deportation order is at page 230 of the volume. Your Honours will see that it is an order that the subject “has conducted himself in a manner prejudicial to the peace” et cetera. He has given no particulars at all of what he is supposed to have done. The order authorises police or immigration officials to put him on a plane or a ship.

Of course, what was arranged, with the connivance of the Australians, he would be put on a plane going to Australia to be met at Brisbane Airport by the Federal Police. The deportation order was in defiance of the Deportation Act which is at page 6 and The Deportation (Amendment) Act, page 1, the point being that when a deportation order is served the person upon whom it is served has the right to go to the High Court to have the deportation reviewed and in the interim the effect of the order is stayed.

Mr Moti was denied that entirely. The deportation order was served on him and he was immediately arrested and taken to the airport. Mr Bond was there nearby when he was arrested. Mr Bond went to the airport. The Australian High Commission, as my learned friend has said, issued a document of identity so that Mr Moti could be forced on to Australian soil. He did not ask for it. It was not given to him. It was given to the Solomon Islands Police Commissioner by Mr Bond. Her Honour said of that, well, that did not matter because it was required to give effect to the purpose of issuing the travel document but the purpose of issuing the travel document, of course, was to get Mr Moti within the jurisdiction of the Australian courts by any means.

Mr Bond passed on to the Deputy Commissioner of the Solomon Islands Police legal advice from Solomon Islands officers that the planned deportation was legal, knowing full well that it was illegal. In that regard could I take you to page 69 of the application book in our written submissions at line 30:

One powerful piece of evidence to which no reference was made by the Court of Appeal or by the learned primary judge concerned a conversation between FA Bond and Deputy Commissioner of the Solomon Islands Police Peter Marshall . . . FA Bond admitted he had passed on to Mr Marshall ‘legal advice from Solomon Islands Government officials to the effect that the planned deportation of the applicant was legal. Contemporaneous documents authored by FA Bond demonstrate unequivocally that he knew the deportation was unlawful. Yet the spurious legal opinion he conveyed to Mr Marshall was expressed with reservation.

While we are on that page, following line 50:

Before the primary judge, a Solomon Islands immigration officer gave evidence that, while on his way to arrest the applicant, FA Bond had said: “do it quick because the plane would be waiting.” FA Bond did not recall what he had said. The learned primary judge made no finding as to whether the words were spoken, but described it as a ‘casual conversation’ –

We say it was direct evidence of Australian involvement in the deportation. There is evidence that Mr Bond went to see the Chief Justice of the Solomon Islands and discussed the Moti case with him. The two Solomon Island officers accompanied Mr Moti on the plane to Brisbane. Australia paid them a travel allowance and gave each a visa to enter Australia and Australia paid for that hotel accommodation while in Brisbane. We say that Australia turned a blind eye to obvious illegality directly affecting an Australian citizen and the matter is clearly justiciable in the Supreme Court of Queensland.

FRENCH CJ: Can I just track how the justiciability question arose? I notice at – I think it is at 50 in the application book, paragraph [47] there is reference to:

An associated ground for maintaining the stay order was that the learned primary judge failed to treat the conduct of the Solomon Islands Government as justiciable.

Can you take us back to the particular finding of the primary judge in that respect?

MR BARKER: Yes.

FRENCH CJ: It would be about paragraph [45], is it? I am not sure.

MR BARKER: I think paragraph [43], your Honours, at application book 18, the last three lines.

FRENCH CJ: I see. Yes, thanks.

MR BARKER: I think it goes, yes:

It is not for this court to express an opinion - - -

FRENCH CJ: The Court of Appeal did not directly engage with that question?

MR BARKER: No, it did not. It simply said that on the facts it did not matter. That is a difficult finding to make without focusing on the conduct in which we say Australia has acquiesced. So there is no question, we respectfully submit, that the - - -

FRENCH CJ: But now the justiciability issue is brought up against you in the submissions by the respondent?

MR BARKER: Yes.

FRENCH CJ: I do not think we need to hear any more from you, Mr Barker.

MR BARKER: Thank you, your Honour.

FRENCH CJ: The Court will grant special leave, but before we formulate the terms of the grant I would just like to clarify the position with respect to the debate on justiciability and whether, in truth, it is a contention point on your side, Mr Agius. As I understand it the justiciability argument being put in Mr Barker’s reply is a response to argument that appears in your submissions. But there is no clear finding adverse to Mr Barker on the question of justiciability in the Court of Appeal because it found that there was a sort of avoidance of that question because it was able to deal with the issue on other bases. Am I correct in characterising this really as a contention point that you would be raising?

MR AGIUS: Yes.

FRENCH CJ: So it might be wise to have a notice of contention?

MR AGIUS: It would be our position on any appeal that her Honour the judge at first instance was correct - - -

FRENCH CJ: Because she made that finding, yes.

MR AGIUS: Although she did look at it. All she – I am not trying to – perhaps I am trying to talk your Honours out of the grant of leave, but it is not as though her Honour was ignorant of what had happened. All of that evidence was before her. Her Honour just never made a finding about it, but she was aware that he had been denied his right of appeal or to challenge the deportation. That was not put in any issue.

GUMMOW J: But she thought that Spycatcher was the end of it, did she not? She cited the Spycatcher Case in this Court.

FRENCH CJ: Heinemann.

MR AGIUS: Yes, yes. But this is not a case, as your Honours would have seen elsewhere, where there was no cognisance at all taken of what happened by the foreign state.

FRENCH CJ: No, I appreciate that.

GUMMOW J: We know that.

MR AGIUS: All that is missing in the exercise of her – because she was asked to exercise a discretion to grant a stay – all that is missing is her finding that he was, in fact, denied a right in the Solomon Islands. The question on special leave is would that have made a difference in this case and, in my respectful submission, it would not have because all of the material was before her. Her finding was, in effect, this is implicit in her finding - - -

FRENCH CJ: All I am trying to explore is how you can properly raise the issue of justiciability?

MR AGIUS: I understand that, your Honour, but what your Honours were not taken to was the fact that she did, in fact, take cognisance of what had happened to him in the Solomon Islands. We would need to raise it as a matter of contention, because we would want to argue and we would want to be heard on the issue of whether or not she ought to have passed comment on the rights or wrongs of the activities of the foreign state.

I also wonder whether this raises a matter under the Constitution? I just have in mind some of the comments of Justice Gummow and section 61 and the extent to which a court can review an executive act because there is an issue about whether or not her Honour could have ever reviewed the issue of the document in the first place and whether or not it was an act of the Executive.

FRENCH CJ: Well, it may well be prudent. I think there is substance in that, Mr Agius. It may be prudent to ensure that section 78B notices are issued. There will be a grant of special leave in relation to grounds 2(1) and 2(2) in the draft notice of appeal at application book 61. Ground 2(4) has been abandoned and ground 2(3) will be excluded from the grant. I suppose that we will probably go over a day. If there are interveners we would expect two days.

MR BARLOW: Yes, thank you, your Honour.

FRENCH CJ: Thank you.

AT 11.17 AM THE MATTER WAS CONCLUDED