Moti v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel,Bell JJ.,Heydon J.
• Judgment Date: 07 December 2011
• Neutral Citation: 2011-1207 HCA A,[2011] HCA 50
• Docket Number: B19/2011
• Date: 07 December 2011

Julian Ronald Moti

Appellant

and

The Queen

Respondent

[2011] HCA 50

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

B19/2011

HIGH COURT OF AUSTRALIA

Moti v The Queen

Abuse of process — Criminal proceedings — Appellant was citizen of Australia suspected of child sex offences against Australian law committed overseas — Appellant deported from Solomon Islands to Australia by Solomon Islands Government contrary to Solomon Islands law — Australian Government representatives in Solomon Islands aware, and informed superiors in Canberra, of illegality — Australian Government issued travel document for appellant and visas to Solomon Islands officials, which facilitated deportation — Appellant charged and prosecuted on arrival in Australia — Whether circumstances of appellant's removal from Solomon Islands required permanent stay of his prosecution.

Abuse of process — Criminal proceedings — Complainant and certain family members made statements about appellant's conduct to Australian Federal Police (‘AFP’) — Complainant and family later refused to participate in prosecution as witnesses unless given ‘financial protection’ — AFP made significant payments to complainant and family — Payments exceeded AFP guidelines but not unlawful — Whether payments to witnesses required permanent stay of appellant's prosecution.

Private international law — Act of State — Act of foreign State — Appellant prosecuted in Australia for offences against Australian law committed overseas — Appellant asserted illegality of Solomon Islands Government's actions under Solomon Islands law in application for permanent stay of prosecution — Whether Australian court can examine, as preliminary to ultimate decision under Australian law, legality of foreign government's actions under foreign law.

Words and phrases — ‘abuse of process’, ‘act of foreign State’, ‘act of State’, ‘deportation’, ‘disguised extradition’, ‘foreign law’, ‘payment to witness’, ‘preliminary’.

Australian Passports Act 2005 (Cth), s 9.

Financial Management and Accountability Act 1997 (Cth), s 44.

Deportation Act (Solomon Islands) (c 58), ss 5(3), 7.

Representation

I M Barker QC with P J Doyle for the appellant (instructed by Herdlaw Solicitors)

J V Agius SC with M C Chowdhury for the respondent (instructed by Commonwealth Director of Public Prosecutions)

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 16 July 2010 and in its place order that the appeal to that Court is dismissed.

1 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. On 3 November 2008, the Commonwealth Director of Public Prosecutions presented an indictment in the Supreme Court of Queensland charging the appellant with seven counts of offences contrary to s 50BA of the Crimes Act 1914 (Cth). At the times relevant to this matter, s 50BA, read with s 50AD, provided that an Australian citizen who, whilst outside Australia, engages in sexual intercourse with a person who is under the age of 16 years commits an offence punishable by imprisonment for 17 years. Four of the counts charged in the indictment alleged conduct in the Republic of Vanuatu; the other three counts alleged conduct in New Caledonia. All counts related to the one complainant and were alleged to have occurred in 1997.

2 The central question in this appeal is whether further prosecution of the charges laid in the indictment should be stayed as an abuse of process. That question should be answered ‘yes’. The appellant was brought to Australia from Solomon Islands without his consent. Officials of the Solomon Islands Government deported the appellant from Solomon Islands by putting him on an aircraft bound for Brisbane without power to do so. Having regard to the role that Australian officials played in connection with the appellant being brought to this country, the further prosecution of the charges would be an abuse of process. The appellant's alternative argument, that the proceedings should be stayed because payments made by Australian authorities to the complainant and her family brought the administration of justice into disrepute, should be rejected.

3 It is necessary to begin consideration of the issues in this matter by describing what was decided at first instance in the Supreme Court of Queensland and on appeal to the Court of Appeal.

Proceedings in the Supreme Court of Queensland

4 At first instance, the appellant alleged 1 that prosecution of the charges laid in the indictment was an abuse of process because his deportation from Solomon Islands was a ‘disguised extradition’. He submitted 2 that the Australian Government had connived or colluded with the Solomon Islands Government in

that unlawful deportation. The appellant further alleged 3 that payments that had been made by Australian authorities to the complainant and her family ‘undermine confidence in the administration of justice’.

5 The primary judge (Mullins J) rejected 4 the appellant's arguments about disguised extradition but stayed 5 further prosecution of the indictment on the ground that the payments made to the complainant and members of her family were ‘an affront to the public conscience’ and that the court should not ‘countenance the means used to achieve the end of keeping the prosecution of the charges against the [appellant] on foot’.

6 The primary judge took two steps of particular importance in dealing with the questions presented by the circumstances in which the appellant had been deported from Solomon Islands and flown to Australia. First, her Honour concluded 6 that the decisions of the Solomon Islands Government to deport the appellant and to do so in the way in which it did were decisions which that Government made and that ‘[i]t is not for this court to express an opinion on these decisions made by the Solomon Islands Government’. The second step concerned her Honour's treatment of the appellant's argument that Australian officials had connived or colluded with the Solomon Islands Government. The appellant had submitted that several matters showed that connivance or collusion. Particular reference was made 7 to the provision of Australian visas to relevant Solomon Islands officers who were to accompany the appellant on his flight from Solomon Islands to Brisbane and an Australian document of identity for the appellant for use in connection with his entry to Australia. The primary judge concluded 8 that neither of these steps could ‘be characterised as connivance or collusion’. This conclusion appears to have proceeded from her Honour's

rejection 9 of the appellant's argument that ‘connivance or collusion’ of the Australian Government could be shown by applying ‘the approach of the criminal law to establishing the liability of parties for an offence committed by a principal offender’ and, in particular, by seeking ‘to characterise the Australian Government as an aider and abetter [of the decisions of the Solomon Islands Government] on the basis that wilful blindness is equivalent to knowledge’ 10.

7 The Court of Appeal (Holmes, Muir and Fraser JJA) set aside 11 the stay ordered by the primary judge. In reasons agreed 12 in by the other members of the Court, Holmes JA held 13 that the primary judge had erred in deciding that the payments made to the complainant and her family were such as to bring the administration of justice into disrepute. Two errors were identified 14 as having been made by the primary judge in connection with that question: ‘the failure to recognise that the questioned payments were not designed to, and did not, procure evidence from the prosecution witnesses; and the failure to pay sufficient regard to the fact that the payments made, while beyond existing guidelines, were not illegal’.

8 In respect of the allegation of ‘disguised extradition’, Holmes JA (again with the concurrence of other members of the Court) rejected 15 the proposition that ‘mere knowledge on the part of the Australian Government that the [appellant's] deportation might be illegal equates to the active involvement in procuring deportation, in preference to the proper course of extradition’, necessary to ground a stay. Her Honour concluded 16 that the Australian

Government had ‘rigorously abstained from expressing any view on what the Solomon Islands Government proposed’. In her Honour's view 17 the issuing of a travel document for the appellant ‘could hardly have been refused in circumstances where he was an Australian citizen’. Accordingly, Holmes JA found 18 that the primary judge had been right to conclude that ‘there was no collusion by the Australian Government in anything amounting to a disguised extradition’.

The appellant's arguments in this Court

9 The appellant placed the chief weight of his submissions in this Court on the argument that the proceedings against him should be stayed because of what Australian officials did in connection with his deportation from Solomon Islands. He also submitted, however, that the Court of Appeal was wrong to disturb the primary judge's conclusion that the payments made to the complainant and her family brought the administration of justice into such disrepute that the proceedings should be stayed.

10 Both submissions were advanced under the rubric of ‘abuse of process’ and sought to engage the well-established rule that in both civil and criminal proceedings ‘Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process’ 19. As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW)20, ‘[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories’. In Ridgeway v The Queen, Gaudron J stated 21 that the power extended to proceedings that are ‘instituted for an improper purpose’, ‘seriously

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