FEDERAL COURT OF AUSTRALIA

El Khouri v Attorney-General [2018] FCA 1488

ORDERS

THE COURT ORDERS THAT:

1.    The amended interlocutory application be dismissed.

2.    The applicant pay the costs of the respondent on the amended interlocutory application, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MCKERRACHER J:

1    The applicant seeks urgent injunctive relief to restrain the respondent from pursuing steps which would achieve the applicant’s extradition from the Republic of Singapore to Australia. As his surrender to Australia is imminent, the application was listed as a matter of urgency. He also seeks to restrain the respondent from seeking the production of two mobile phones seized from him in Singapore. I dismissed the applicant’s amended application. My reasons follow.

EVIDENCE

2    The applicant relies on three extensive affidavits. The respondent relies on an affidavit annexing communications with Singaporean authorities concerning the phones.

BACKGROUND

3    According to the applicant’s evidence, on 29 July 2014, New South Wales police officers and officers from the Department of Fair Trading attended a warehouse in Alexandria to execute a search warrant. They could not gain entry so telephoned the applicant’s sister, Lilian, who was then the director of the company holding the lease of the warehouse. Lilian told the police to contact the applicant. The applicant retrieved the warehouse keys and provided them to the police at the warehouse. The keys were kept in the company office and were accessible to all employees of the company.

4    A week after the attendance at the warehouse, on 6 August 2014, the police executed a search warrant at a Concord property, Lilian’s place of residence. The applicant was not present as the police did not contact him. The applicant’s evidence is that his parents, several siblings and their spouses reside at the Concord property, but not the applicant.

5    On 5 March 2015, an investigating officer issued 26 court attendance notices (CANs) in respect of various offences alleged against the applicant. The CANs were issued at the Parramatta Local Court and subsequently lodged in the Local Court of New South Wales in Burwood.

6    On 2 April 2015, the Local Court of New South Wales in Burwood issued a warrant for the applicant’s arrest. On 9 April 2015, another two warrants were issued (collectively, the warrants).

7    The applicant deposes that neither the CANs nor the warrants were served upon him. Further, he deposes he was not informed or notified of them. He departed Australia on 30 March 2015, prior to the warrants being issued.

8    By written request dated 21 December 2017, the Government of Australia requested the Government of Singapore arrest the applicant. The request was for ‘urgent provisional arrest’ by the Singaporean authorities pending the presentation of the formal request for extradition. On 19 January 2018, officials in Singapore arrested the applicant. He has been detained in custody in Singapore since that date. Since his arrest, the applicant has been engaged in the extradition process prescribed by the municipal law of Singapore.

9    On 14 February 2018, Australia presented its formal extradition request to Singapore.

10    Later on 13 June 2018, an officer of the Commonwealth Attorney-General’s Department sent an email to Singapore’s Attorney-General’s chambers asking the Singaporean authorities to deliver, ‘if possible’, the phones in the applicant’s possession ‘should Singapore authorities determine that [the applicant] is to be surrendered to Australia’.

11    On 9 August 2018, a delegate of the Attorney-General made a request of the Government of Singapore under the Mutual Assistance in Criminal Matters Act 1987 (Cth) and the corresponding Singaporean Mutual Assistance in Criminal Matters Act (Chapter 190A, Statutes of the Republic of Singapore) for the seizure of the phones and forensic imaging by Singaporean authorities of the phones.

RELIEF SOUGHT IN THIS AMENDED APPLICATION

12    The practical objective of this application is threefold: first, for the applicant to be released from custody in Singapore, secondly, to ensure that the applicant is not returned to Australia and, thirdly, to have the applicant’s phones returned to him.

13    It is unnecessary to refer to the detailed amended originating application; for present purposes it suffices to refer to the amended interlocutory application accepted for filing at the hearing and the orders therein sought. They are as follows:

1.    An Order directing the Respondent to inform the Government of the Republic of Singapore that the Respondent has no objections to the Applicant being granted bail in Singapore, pending the final determination of the proceedings, on such terms and conditions as the Court in Singapore may deem fit to impose;

2.    An injunction restraining the Respondent and any of his officers, servants or agents from taking any further action, including any act of accepting the delivery of the two mobile phones from Singapore, until further order, pursuant to the request to the competent authority of Singapore to seize the two mobile phones (being one black iPhone 7 Plus and one white iPhone 6 S Plus) which were in the possession of the Applicant on the day he was arrested, and which were subsequent held on trust for the Applicant by the Singapore Prison Service, purportedly made by the Respondent on 9 August 2018 pursuant to Section 10(1) of the Mutual Assistance in Criminal Matters Act 1987;

3.    An injunction restraining the Respondent and any of his officers, servants or agents from taking any further action, including any act of accepting the surrender of the Applicant from Singapore, until further order, pursuant to the request to surrender the Applicant from Singapore to Australia purportedly made by the Respondent on 6 February 2018 pursuant to Section 40 of the Extradition Act 1988 (Cth).

JURISDICTION

14    The respondent contends that by virtue of s 39B(1C)(a) and s 39B(1C)(c) of the Judiciary Act 1903 (Cth), this Court lacks jurisdiction in respect of this matter. This contention is correct in my view.

15    Section 39B relevantly provides:

(1C)    Subject to subsection (1D), at any time when:

(a)    a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or

(b)    an appeal arising out of such a prosecution is before a court of a State or Territory;

the following apply:

(c)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d)    the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.

(1D)    Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

…

(3)    In this section:

…

“related criminal justice process decision” in relation to an offence, means:

(a)    a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i)    decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii)    a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii)    a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv)    a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v)    a decision in connection with an appeal arising out of the prosecution; or

…

(Emphasis added.)

16    Section 39B(3)(a)(iii) of the definition of ‘related criminal justice process decision’, specifically refers to warrants.

17    From the parties’ oral submissions, two issues appear to arise for consideration as to the applicability of this provision:

(1)    whether the issuing of the CANs and subsequent warrants constitutes ‘a prosecution for an offence’ that is ‘before a court’ for the purposes of falling within s 39B(1C)(a); and

(2)    whether this application constitutes a ‘related criminal justice process decision’ for the purposes of s 39B(1C)(c).

18    In my opinion both questions are to be answered in the affirmative such that this Court lacks jurisdiction to determine this matter.

Issue 1: ‘a prosecution for an offence’ that is ‘before a court’

19    The application of s 39B(1C) is conditional upon the fact that a prosecution is before a State or Territory court. The applicant says that s 39B(1C) does not operate to preclude the Court’s jurisdiction because the issuance of warrants does not amount to a prosecution being one which is ‘before a court’.

20    There appear to have been two limbs to this contention. First, that there is no prosecution against the applicant before any court by virtue of the warrants being issued in the incorrect name and birthdate. Secondly, even if the warrants were correct in all respects, that the mere issuance of a warrant does not give rise to a prosecution being one which is ‘before a court’.

21    The first limb was not expressly argued in the jurisdiction context but is the major plank in the argument that the request was invalidly made as there was no valid warrant. As will be seen, that argument must be rejected for several reasons. First, making a request is an executive power which does not depend on any warrant as such (as far as Australia is concerned). Secondly, the argument that the warrant was ‘unlawful’ because it was issued in the incorrect name lacks foundation. The applicant contends that these errors ‘nullify the whole extradition’.

22    The applicant relies on relies on Hoye v Bush (1840) 1 Man & G 775, where a warrant was issued in the name of John Hoye, whereas the name of the party arrested was Richard Hoye, John being his father’s name. As it transpired, Richard Hoye was indeed the person whom the complainant intended to arrest in answer to an accusation of stealing. However, in the context of an action for false imprisonment against the constable brought by Richard Hoye, it was held unanimously by a court of four judges, including the Chief Justice of the Common Pleas, that the arrest was unlawful, not being done in pursuant to the warrant as issued. It was no defence that Richard Hoye was really the person intended to be arrested as the law does not provide for such qualification. The analogous ‘error’ in this proceeding, the applicant says, is no minor matter.

23    The applicant says that the warrants against him being in an incorrect name and the wrong birthdate render them invalid. He says that the respondent or his officers should have known that the passport name of the applicant is ‘Milled El Khouri’, not ‘Chris Elkhouri’, being the name appearing in the warrants. Similarly, his birthdate as shown in his passport is inconsistent with the birthdate shown in the warrants. It is stated as being ‘25 December 1971’ as opposed to the accurate birthdate of ‘25 December 1972’. It is contended El Khouri is a common Lebanese name and Chris is also a common Christian name, but the applicant’s name is not Chris Elkhouri, his name is Milled El Khouri.

24    I note that the decision in Hoye was more recently the subject of consideration by the House of Lords in McGrath v Chief Constable of the Royal Ulster Constabulary House of Lords [2001] 2 AC 731. In McGrath, Lord Clyde (with whom Lord Steyn, Lord Browne-Wilkinson and Lord Cooke of Thorndon agreed) noted that a principle deriving from Hoye ‘is that the person executing a warrant should follow and be entitled to rely on the face of the warrant’ (at 738). As Coltman J stated in Hoye (at 788):

It is of the essence of a warrant that it should be so framed, that the officer should know whom he is to take, and that the party upon whom it is executed should know whether he is bound to submit to the arrest.

25    This is not a case where, as the applicant contends, the ‘wrong name’ was such that there was doubt as to whom the warrants were addressed (either from the point of view of the person executing the warrant or the addressee). The ‘wrong name’ in the warrants to which the applicant points is ‘Chris Elkhouri’ and there is no doubt that the warrant was issued for the correct person (the applicant) who tended to go by several names, including the name in which the warrant was issued. That fact is reflected in the range of names in which the actual request was issued. The same considerations apply to the birthdate. Although the birthdate was wrong in recording the year of birth as 1971 rather than 1972, there is no doubt that the warrant is intended to be issued to this applicant, as he concedes.

26    It is quite clear that in the formal request for extradition which is under attack (primarily because the ‘wrong person’ was named in the warrants), the extradition request is in relation to:

… CHRISTOPHER MILLED ELKHOURI (also known as Christopher Elkhouri, Chris Elkhouri, Milled Elkhouri, Milled Christopher Elkhouri, Milled Chris Elkhouri, Milled El Khouri, Christopher El-Khouri, and Christopher El Khouri) ...

(Emphasis added.)

27    There is no question at all of any mistaken identity. The formal request included the correct name of the applicant (and the various aliases he had adopted). This conclusion is further supported by the fact that the written submissions filed in this Court on behalf of the applicant contained the header ‘Re Christopher Milled Elkhouri’.

28    In Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395, there was an attempt to set aside search warrants. The Full Court (O’Loughlin, North and Weinberg JJ) explained that a decision taken in the course of an investigation leading to a customs prosecution, such as the decision to issue a search warrant, was a ‘related criminal justice process decision’ and a decision ‘made in the criminal justice process’ (at [77] and [83]). The Full Court also said that the legislative purpose was to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process (at [14]). The aim was to remove collateral access to federal administrative law procedures and remedies in this Court, at least in those cases where a prosecution for an offence against a law of the Commonwealth had been commenced (at [14]).

29    Following Jiang, in McCarthy v Commissioner of Taxation (2013) 249 FCR 140, Robertson J held (at [39]) that a straightforward application of Jiang showed that this Court had no jurisdiction in respect of at least the parts of the applications before his Honour which impugned the validity of the search warrants and sought the return of material seized under those warrants or the destruction of that material.

30    Dealing with the second limb, whether a prosecution for an offence is on foot ‘before a court’ for the purposes of s 39B(1C)(a), it is an issue which is readily answerable by having regard to the evidence filed and relied upon by the applicant. The warrants are a consequence of the series of CANs (referred to above) which are stated to have been issued by the Parramatta Local Court concerning a range of offences under the Crimes Act 1900 (NSW).

31    Turning to the Criminal Procedure Act 1986 (NSW) the following provisions are of note:

47    Commencement of committal proceedings by court attendance notice

(1)    Committal proceedings for an offence are to be commenced by the issue and filing of a court attendance notice in accordance with this Division.

(2)    A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.

(3)    A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

…

…

172    Commencement of proceedings by court attendance notice

(1)    Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.

(2)    A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence.

(3)    A court attendance notice may be issued in respect of any offence for which proceedings may be taken in this State, including an offence committed elsewhere than in this State.

173    Commencement of proceedings by police officer or public officer

If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.

174    Commencement of private prosecutions

(1)    If a person other than a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division.

(2)    A registrar must not sign a court attendance notice if:

(a)    the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or

(b)    the registrar is of the opinion that the notice is not in the form required by or under this Act, or

(c)    the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice.

(3)    If a registrar refuses to sign a court attendance notice proposed to be issued by any such person, the question of whether the court attendance notice is to be signed and issued is to be determined by a Magistrate on application by the person.

…

178    When proceedings commence

(1)    All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division.

(2)    (Repealed)

(3)    Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date.

(Emphasis added.)

32    It is clear that the issuance of a CAN gives rise to proceedings being commenced in a New South Wales Court. Once proceedings are commenced they are ‘before the court’. Relevantly, the CANs filed as evidence before this Court make clear that the proceedings against the applicant commenced before the Parramatta Local Court. The warrants were subsequently issued by the Local Court of New South Wales in Burwood for the reason that ‘[a] court attendance notice has been filed in respect of the following offences’. There is no basis for the applicant’s contention that the mere issuance of the warrants does not give rise to a ‘prosecution for an offence’ being ‘before a Court of the State’ for the purposes of s 39B(1C)(a).

Issue 2: ‘related criminal justice process decision’

33    As described by Beaumont J in Phong v Attorney-General (Cth) (2001) 114 FCR 75, on a literal approach, this Court does not have jurisdiction to entertain the injunction sought if the claim is:

‘… in relation to a related criminal justice process decision … [that is to say] … in relation to an offence … a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence … [being] … a decision in connection with the investigation, committal for trial or prosecution of the [appellant]’. (Emphasis added [in original].)

34    The legislative intention, as noted by Beaumont J (at [33]), appears to be that s 39B(1C) ought to quarantine from judicial review by this Court collateral decisions made in the prosecution process, presumably leaving the decision to prosecute itself to be provided for by s 39B(1B). Here, s 39B(1B) cannot apply, because the prosecution has already commenced.

35    Relevantly, the injunctions sought in this proceeding seek to restrain the respondent and his officers from taking further action to acquire the phones held by Singaporean authorities and from seeking the extradition of the applicant from Singapore. The issue is whether the relief sought is in relation to a ‘related criminal justice process decision’.

36    Consideration of this definition in s 39B ordinarily arises where a person is in Australia facing prosecution in a state court and challenges are made seeking to deprive this Court of jurisdiction to collateral challenges to decisions made in respect of prosecutions before state courts. The additional nexus that confronts the Court in this application is that there is an extradition proceeding in connection with that process in the New South Wales courts, which has been commenced by the CANs. As such the pertinent question is whether because the decision concerns extradition and phone seizure by foreign authorities it is brought outside the ordinary application of s 39B(1B) and s 39B(1C).

37    I accept the argument made for the respondent that decisions made by the prosecuting authorities in New South Wales, to seek the assistance of the respondent in requesting the Singaporean authorities for assistance in gathering evidence (ie the request for the phones) and the extradition of the individual charged with multiple offences within the state, is a decision which falls within the definition of a ‘related criminal justice process decision’. It is a decision which could comfortably fall within the ambit of a ‘decision in connection with the investigation … or prosecution of the defendant’(s 39B(3)(a)(i)), or ‘the issue of a warrant’(s 39B(3)(a)(iii)) or ‘the giving of information’ (s 39B(3)(a)(iv).

38    It follows that this Court does not have jurisdiction to grant the relief sought by the amended interlocutory application by virtue of s 39B(1C).

SUBMISSIONS IN SUPPORT OF THE APPLICATION

39    The analysis which follows proceeds on the assumption (against my conclusion) that the Court does have jurisdiction.

40    It is unnecessary to deal with the balance of convenience as both the respondent and I accept that the balance of convenience favours the grant of relief, if there is a prima facie case. The applicant is in custody in poor conditions. He also says (without adequate evidentiary foundation) that there is ‘a price placed on my head in Australia’.

41    The difficulty is in the prima facie case. The applicant puts his prima facie case in these terms:

67.    In brief, the Applicant has made out the prima facie case on the following grounds:

67.1.    In respect of the request to surrender the Applicant from Singapore to Australia purportedly made by the Respondent on 6 February 2018 pursuant to Section 40 of the Extradition Act 1988 (Cth), the Respondent committed jurisdictional error because he ignored relevant material and relied on irrelevant and erroneous material.

67.1.1.    The Respondent relied on fundamentally defective warrants.

67.1.2.    The Respondent failed to consider relevant material which proves that the Applicant was not evading arrest as alleged in the Request for Provisional Arrest.

67.1.3.    The Respondent failed to consider relevant material which proves that the Applicant could not have committed the offences as alleged in the Charges which are the subject of the present extradition.

67.1.4.    The Respondent failed to consider that there has been substantial delay in the authorities’ handling of the matter.

67.2.    In respect of the request to the competent authority of Singapore to seize the 2 mobile phones which were in the possession of the Applicant on the day he was arrested, and which were subsequent held on trust for the Applicant by the Singapore Prison Service, purportedly made by the Respondent on 9 August 2018 pursuant to Section 10(1) of the Mutual Assistance in Criminal Matters Act 1987 (“Post-arrest Request”), the Respondent committed jurisdictional error because he ignored relevant material and relied on irrelevant and erroneous material.

67.2.1.    The Respondent failed to rely on relevant material, and instead relied on irrelevant material raised by the NSW Police and/or the NSW ODPP, which misled the Respondent to believe that the two mobile phones allegedly “may have” information relevant to the prosecution of the Applicant.

67.2.2.    The Respondent failed to consider the fact that the phones belonging to the Applicant’s sister were not seized throughout the investigation process proves that the NSW Police or NSW ODPP had no reason to believe that communications between the Applicant and his sister on the basis that their communication contain the Applicant’s admissions on the offences for which his extradition is sought. After all, the exact same communications would have been captured in the phones of the Applicant’s sister.

67.2.3.    The Respondent failed to consider the fact that the request from NSW Police and ODPP was made 8 months after they knew that the 2 mobile phones, and the fact that no reason was given for the delay, proves that this request was merely an afterthought and a fishing expedition.

67.3.    The Post-arrest Request was pursuant to an improper purpose.

67.3.1.    The NSW ODPP had offered contradictory reasons for making the request for the seizure of the 2 mobile phones belonging to the Applicant.

67.3.2.    …, a Solicitor Advocate of the NSW ODPP, had informed the Applicant’s lawyers on 6 August 2018 that, the 2 mobile phones were seized for “Any material on that phone that relates to the accused leaving this jurisdiction and evading Australian authorities would be relied on as evidence of a consciousness of guilt in committing the offences that are the subject of extradition.”

67.3.3. In the email from the Respondent’s office to … of the Attorney-General’s Chambers in Singapore dated 13 June 2018, the reason which was provided for the request for seizure of the 2 mobile phones was: “NSW Police believes that Mr Elkhouri may have discussed the case with Lillian and during these communications he may have made admissions that he committed one or more of the offences for which his extradition is sought. As Mr Elkhouri departed Australia in 2015, NSW Police believes that these communications may have communicated with his sister via mobile phone.”

67.3.4. In the Post-arrest Request, there was no mention of the 2 mobile phones being seized for evidence relating to the Applicant evading Australian authorities.

67.3.5. In view of the contradictory reasons, it is clear that the Post-arrest Request was made for the improper purpose of a fishing expedition. It might well be that the Respondent’s office were misled by the NSW Police and NSW ODPP, which were crafting new reasons to justify their baseless request for the seizure of 2 mobile phones.

(Citations omitted and emphasis added in original.)

42    The applicant particularly emphasises that:

(a)    the warrants were issued in the wrong name with the wrong birthdate;

(b)    there was no proof that the applicant sought to evade arrest or did evade arrest; and

(c)    the request for a provisional arrest contained multiple errors of fact which misled the respondent, hence prejudicing the applicant.

43    Indeed, the applicant has put a number of these matters on a stronger basis, asserting that the underlying charges and the suggested errors and miss-descriptions in relation to their content evidence bad faith on the part of investigators.

44    Section 40 of the Extradition Act 1988 (Cth) provides:

40    Requests for surrender of persons to Australia

A request by Australia for the surrender of a person from a country (other than New Zealand) in relation to an offence against a law of Australia of which the person is accused or of which the person has been convicted shall only be made by or with the authority of the Attorney General.

(Emphasis added.)

45    In relation to the incorrect name on the warrants and the incorrect birthdate, the applicant stresses that for the respondent to be able to issue an extradition request under s 40 of the Extradition Act, the accusation against the person sought to be extradited must be a valid accusation. He says that the warrants against him being in an incorrect name and the wrong birthdate render them invalid. I have addressed this submission in considering jurisdiction.

46    It is further argued for the applicant that there is no evidence of guilt whatsoever in relation to the alleged offences. He points to the fact that the charges set out by the respondent in the extradition request were made up the following offences:

    11 offences of knowingly dealing with the proceeds of crime, contrary to s 193B(2) of the Crimes Act;

    11 offences of dishonestly possessing an interfered with unique identifier, contrary to s 154I(1) of the Crimes Act;

    two offences of knowingly possessing a vehicle identification plate not attached to the correct vehicle, contrary to s 154J(1) of the Crimes Act; and

    one offence of knowingly facilitating organised car rebirthing activity, contrary to s 154G of the Crimes Act.

47    The applicant says, however, that he was not at one of those properties (the Concord property) at any time relevant to the charges. It is asserted that the charges could not be made out under any circumstance.

48    The applicant also complains that the information in the extradition bundles was substantially incorrect and misleading. It is said that all that had been done by the Australian authorities was to make bare allegations against him. He says no objective evidence was relied upon. As an example, the applicant submits the allegation made that he and his sister received stolen cars and car parts and changed the vehicle identification numbers (VIN) in order to sell the vehicles illegally through the applicant’s business ‘Exoticars Proprietary Ltd’, was ‘bare and unsubstantiated’. He complains that, in fact, there is no company of this name whatsoever. Further, in response to the allegation that the applicant and his sister together operated the business of ‘Exoticars Autohaus Pty Ltd’, the applicant says he is neither a director nor a shareholder of this company. It is contended ‘there is absolutely no evidence to support this bare allegation’. Moreover, the applicant complains that although the offences are said to have been committed at a warehouse in Alexandria and at the Concord property, there is no evidence that he was in possession of the two premises or that he had control over them at any time.

49    Further, the applicant takes issue with the substantial delay had by the authorities in handling the matter. The applicant draws to the Court’s attention the period of time of eight months which elapsed between the initial execution of the search warrants and the subsequent CANs and warrants for the applicant’s arrest, by which time he had already left Australia. Prior to that time, the applicant was never out of reach of the Australian police who had his telephone number and knew where he lived. During that time, the applicant was mostly in countries which had existing extradition relations of some description with Australia and Australia could have sent extradition requests wherever he was. I pause to note that while Singapore does not have an extradition treaty with Australia, it is a Commonwealth country and has reciprocal arrangements with Australia by virtue of that status.

50    The applicant also points to the four years that have elapsed between the execution of the search warrants and his sister’s conviction in May 2018 as evidencing that any delay in the progress of his prosecution is attributable to Australian authorities, not himself.

51    The applicant complains that there was jurisdictional error on the part of the respondent because the request was made without proper consideration of all the relevant material in relation to the charges and/or for an improper purpose.

52    He makes a similar submission in relation to the reasons provided by the respondent in the post-arrest request for the phones. In this regard, he contends that there was a contradiction between the reasons given for the need to obtain the phones for examining. He refers first to communication from a solicitor advocate of the New South Wales DPP on 6 August 2018 to the applicant’s lawyers that the phones were seized for the reason that any material on the phones that relates to the accused leaving the jurisdiction and evading Australian authorities would be relied upon as evidence of consciousness of guilt in committing the offences that are the subject of extradition. However, on 9 August 2018, in the request submitted to the Singaporean authorities, it was stated that the purpose was that Australia believed that the applicant had used messaging applications on his phones to engage in incriminating conversations with his sister, such as concocting defences to the alleged offences. The applicant says that these reasons contradict each other and in circumstances where the seizure of the phones was unlawful (as not being supported by any provision of the Singaporean Extradition Act) it should have alerted the respondent. However, the respondent failed to take into account these inconsistencies.

53    The applicant says that no attempt was made to seize his sister’s phones which would reveal the same incriminating evidence on which reliance was placed if the communications emanated from the applicant. Therefore, it is said that the reason for seizure was entirely disingenuous. The fact that the respondent waited eight months before making the request, the applicant says, is inconsistent with the two reasons given for the seizure of the phones.

CONSIDERATION

54    As noted, the applicant’s primary argument turns on the ‘errors’ in the warrants (and their consequent invalidity) and the suggestion that s 40 of the Extradition Act cannot therefore have been complied with.

55    It is important then to consider just what function s 40 of the Extradition Act serves.

Principles on s 40 of the Extradition Act

56    In Oates v Attorney-General (Cth) (2003) 214 CLR 496, in a joint decision of the High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne and Heydon JJ) it was said ([32]-[35], [39] and [45]):

32    At the time of the decision in Barton [v Commonwealth (1974) 131 CLR 477], the 1966 Act was in force. The issue for decision was whether a request made by Australia to the Federative Republic of Brazil, a state with which Australia had no extradition treaty, for the detention, with a view to surrender, of fugitives from Australian justice was invalid. McTiernan and Menzies JJ pointed out that the concept of invalidity is not easy to relate to a communication, and that the real question must be whether the making of such a request was unlawful. All members of the Court answered that question in the negative. All agreed that it was within the executive power of the Commonwealth to make such a request, and that nothing in the 1966 Act excluded that power, or limited it in any manner that had relevance to the case. In particular, s 21 of the 1966 Act did not limit the power of the Executive Government to make a request for extradition to a state with which Australia had no extradition treaty.

33    In the course of discussing the meaning and effect of s 21 of the 1966 Act, members of the Court made observations as to its possible effect upon the power of the Executive to make a request for extradition, to a state with whom Australia had treaty arrangements, outside the scope of those arrangements. Barwick CJ expressed the view that the Australian Government could not seek to obtain the surrender from a treaty state of a fugitive who had not committed an extraditable crime as defined in the Act. Jacobs J said that the question did not need to be determined, and expressed no view. McTiernan and Menzies JJ said that, unless statute, either expressly or by implication, has deprived the Executive of part of its inherent power, it may make such requests as it considers proper for the assistance of other states in bringing fugitive offenders to justice. They pointed out that it was understandable that Parliament should confine executive power in relation to extradition from Australia without doing the same in relation to extradition to Australia.

34    Mason J examined in detail the history of the executive power in relation to surrender, and requests for surrender, of fugitives, emphasising the difference between the considerations that apply to surrender of a person present in Australia and a request for the surrender of a person resident in a foreign state. For reasons which he explained, he attached less significance to reciprocity than Barwick CJ. Mason J stressed the principle that a statute will not be held to abrogate a prerogative of the Crown unless it does so by express words or necessary implication. He regarded the power to seek and obtain the surrender by a foreign state of a fugitive offender as a power essential to a proper vindication and an effective enforcement of Australian law, and said that it was not to be supposed that Parliament intended to abrogate the power in the absence of a clearly expressed intention to that effect.

35    Barwick CJ was the only member of the Court in Barton who reached his decision with any apparent hesitation, and it is evident that the reason for his hesitation was the importance which he attributed to reciprocity. However, as the other members of the Court acknowledged, and as the history of extradition legislation shows, the considerations relevant to surrender of a person from the United Kingdom, or Australia, are materially different from those which determine whether a request may be made to a foreign state to surrender a person to the United Kingdom or Australia. Such a request is an act of international intercourse, and it is for the state to which it is made to determine what its response will be. States may invoke comity as well as obligation, and if a requested state, which is not bound to accede to a request, chooses to do so, perhaps on terms as to reciprocity, then that is a matter for it. In the present case, the respondents contend, and the appellant denies, that Poland is under a treaty obligation to surrender the appellant. But the appellant’s argument depends, not only upon his contention that Poland is not under such an obligation, but, additionally, upon the proposition that, in those circumstances, it is unlawful for the first respondent to request surrender.

…

The lawfulness of the request

…

39    Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision.

…

45    It is true that a request for extradition of a person in the position of the appellant might have the effect of setting in train steps that result in a loss of that person’s liberty pending the determination by the foreign state of the request and, if that determination is favourable to the request, interruption of the individual’s life in the foreign state and removal, probably in custody, to Australia. It is an established principle, frequently applied by this Court, that legislation is construed, in the event of ambiguity, to uphold fundamental rights and to avoid unnecessarily diminishing them. However, in this case, that principle cannot assist the appellant. There is no ambiguity in either the 1966 or 1988 Act so far as requests for extradition are concerned. In neither Act is there a relevant express restriction on the Executive’s power to make a request and the foregoing principle of construction cannot fill the omission so as to give rise to an implied restriction.

(Citations omitted and emphasis added.)

Application of the principles

57    As to the complaints about alleged errors in the first informal request and indeed about supposedly erroneous or even conflicting information given to and ostensibly relied upon by the respondent in support of the request, this is not the time for that analysis. See the discussion below (at [68]-[70]).

58    As to the absence of proof of guilt, it is important to recognise that the extradition process does not involve in any way the determination of the guilt or innocence of the person wanted for extradition: see, for example, Vasiljkovic v Commonwealth (2006) 227 CLR 614. In Vasiljkovic, Gleeson CJ (at [34]) and Gummow and Hayne JJ (at [105]) and [113]-[115]) relevantly noted:

34    Plainly, extradition has serious implications for the human rights, and in particular for the personal liberty, of the person who is the subject of a request for surrender. Those implications are not limited to the case of a person who is an Australian citizen. The interference with personal liberty involved in detention during the extradition process (if that occurs), and in involuntary delivery to another country and its justice system is not undertaken as a form of punishment. No doubt, to the person involved, some of its practical consequences may be no different from punishment, but the purpose is not punitive. To repeat, the process involves no adjudication of guilt or innocence. It is undertaken for the purpose of enabling such an adjudication to be made in a foreign place, according to foreign law, in circumstances where Australia has no intention itself of bringing the person to trial for the conduct of which the person is accused.

…

105    But the scheme of Pt II of the Act stamps the procedures with which it deals with a different character. The ultimate determination is not a trial by Australian judicial process. The procedures provided by Pt II are employed with a view to the rendition of the person in question to a foreign State, to suffer the consequences of an existing conviction there or to undergo trial there but, in either case, with no determination in Australia of guilt or innocence.

…

113    The detention here is in aid of determination of guilt or innocence not in a domestic forum, but in the requesting State. This circumstance does not deny the exceptional nature, in the relevant sense, of that detention. The long history of extradition before the adoption of the separation of judicial power by Ch III of the Constitution is a weighty consideration. The legislatively based surrender, even of citizens, to foreign States for determination there of criminal guilt or innocence, or for suffering of punishment there upon earlier conviction, is an instance where the general subjection to Ch III of the legislative powers of the Parliament does not necessarily constrain law-making.

114    In R v Cox; Ex parte Smith, when speaking of military justice and the reposing by Ch III of the judicial power of the Commonwealth exclusively to courts of justice, Dixon J said that any “exception” here was not “real”. The necessity and occasions for the imposition of military discipline stood that system outside Ch III. The same is true of extradition processes but to a more limited degree.

115    Extradition processes, to be effective and reciprocal, must provide, as a general proposition, for determination in the requesting State of issues of criminal guilt or innocence, and for detention by the requested State pending its determination of surrender. The reasons why this is so are recounted earlier in these reasons and were developed in Cabal.

(Citations omitted and emphasis added.)

59    While the comments in Vasiljkovic are made in respect of the context of answering requests from foreign states, they apply equally in respect of a request made by Australia of a foreign state.

60    As to the alleged errors in the warrants, it is clear then that a request to a foreign state for the surrender of a person convicted of, or alleged to have committed, an office against the laws of Australia is within the prerogative or executive power of the Commonwealth as explained above by the High Court in Oates (see also Barton v Commonwealth (1974) 131 CLR 477 per Barwick CJ (at 484-485), per McTiernan and Menzies JJ (at 491), per Mason J (at 498) and per Jacobs J (at 505)).

61    The same point of principle applies directly to a request for the provisional arrest and detention of a person by a foreign state pending the making of an formal request for extradition: see Oates above and Barton per McTiernan and Menzies JJ (at 489-491), per Mason J (at 498-499) and per Jacobs J (at 505).

62    The contention advanced for the applicant that s 40 of the Extradition Act is the power under which the respondent is entitled to seek extradition is incorrect. The executive power of the Commonwealth is not displaced by s 40 of the Extradition Act as explained in Oates (at [29]). Section 40 is not a source of power, but assumes the power is vested in the Executive as noted in Oates (at [29]):

When s 40 of the 1988 Act is compared with s 21 of the 1966 Act, the following differences appear. First, s 40, evidently drafted with an eye to the problem that arose in Barton, refers generally to “an offence” rather than an “extraditable crime”, or an “extradition offence”. The latter is an expression with a defined meaning used in other parts of the Act and, in particular, Pt II, which deals with extradition from Australia. Secondly, and apparently for the same reason, s 40 refers to a “request” rather than a “requisition”. Thirdly, whereas s 21 of the 1966 Act empowered the Attorney-General to make a requisition, s 40 of the 1988 Act is expressed in terms which assume the existence of a power in the Executive Government to make a request, and restrict the exercise of the power to the Attorney-General or a person acting with the authority of the Attorney-General. This assumption is reinforced by the language of s 3(b).

(Emphasis added.)

And expressly (at [39]):

Section 40 of the Act is not expressed as a source of power to make requests for extradition. The power to make a request is vested in the Executive Government. Section 40 assumes the existence of the power, and regulates its exercise by providing that a request shall only be made by or with the authority of the Attorney-General. The request in the present case complied with that provision.

63    Section 40 is, as noted, a machinery provision which regulates the exercise of the power by providing that the request ‘shall only be made by or with the authority of the Attorney-General’. A similar observation was made in the Mokbel v Attorney-General (Cth) (2007) 162 FCR 278 per Gordon J (at [21]):

While not the source of executive power to make an extradition request, s 40 of the Extradition Act is a machinery provision which regulates the exercise of that power by providing that a request “shall only be made by or with the authority of the Attorney-General”. Why is a machinery provision necessary and how does it operate? There are at least two answers to each question. They are to be found first, in the nature and second, the manner of exercise of executive power.

(Emphasis added.)

64    There is no doubt that the request by Australia for the extradition from Singapore of the applicant was made by the respondent. The request was personally signed by the Attorney-General. That satisfies the requirement of s 40 of the Extradition Act. No question of non-compliance can arise.

65    Of course, as noted in Oates (at [35]), the requests for the arrest and for extradition are acts of international intercourse, such that it is for Singapore to determine how it will respond to the request made by the respondent:

Barwick CJ was the only member of the Court in Barton who reached his decision with any apparent hesitation, and it is evident that the reason for his hesitation was the importance which he attributed to reciprocity. However, as the other members of the Court acknowledged, and as the history of extradition legislation shows, the considerations relevant to surrender of a person from the United Kingdom, or Australia, are materially different from those which determine whether a request may be made to a foreign state to surrender a person to the United Kingdom or Australia. Such a request is an act of international intercourse, and it is for the state to which it is made to determine what its response will be. States may invoke comity as well as obligation, and if a requested state, which is not bound to accede to a request, chooses to do so, perhaps on terms as to reciprocity, then that is a matter for it. In the present case, the respondents contend, and the appellant denies, that Poland is under a treaty obligation to surrender the appellant. But the appellant’s argument depends, not only upon his contention that Poland is not under such an obligation, but, additionally, upon the proposition that, in those circumstances, it is unlawful for the first respondent to request surrender.

(Citations omitted and emphasis added.)

66    Significantly, in Australia, from a practical perspective, there is nothing more to be done in the sense that there is no public duty owed by the respondent in Australia which the applicant can seek to enforce and no departure from the lawful performance of what is required under the Extradition Act. The matters of which complaint is raised are extraneous to the operation and execution of the Extradition Act. As Gordon J said in Mokbel (at [65]-[66]):

65    The foregoing reasons deal with the substance of the arguments advanced by the Applicant. They require the conclusion that the application be dismissed. It is as well, however, to go on to say that it is greatly to be doubted that, even if established, the matters urged by the Applicant would found any claim to relief of the kinds claimed. Not only does the Applicant not identify how relief under s 39B of the Judiciary Act (or any associated relief) could be framed in a way that would achieve the practical result of interrupting the extradition process, the difficulties in framing such relief point to more fundamental difficulties in the Applicant’s case. The practical consequence the Applicant sought to achieve is to have the extradition processes being undertaken in the Hellenic Republic brought to an end. The Applicant seeks a variety of relief intended to compel that ultimate end — injunction, prohibition, and mandamus. In addition he seeks declarations though, of course, that relief would have no directly coercive consequence.

66    The fundamental difficulty presented by these claims is that the Applicant points to no public duty which it seeks to enforce and points to no departure from the lawful performance of what is required under the Extradition Act. Rather, he points to matters extraneous to the operation and execution of the Extradition Act and says that, on that account, the Request should be withdrawn.

(Emphasis added.)

67    Similarly in this instance, the decision to seek extradition has been made and the request has been transmitted to Singapore. No proposition advanced by the applicant can establish that the request was not lawfully made, but from a practical perspective there is no further act to be performed by the respondent which could be restrained. Of course, a declaration as sought in the substantive application would have no coercive consequence. Further, an injunction cannot exist in a vacuum. It can only be granted as an aid to substantive relief. Here, there is no basis for substantive relief.

68    There are allegations of bad faith advanced by the applicant. In my view, even assuming they were made out, they fall far short of the level which would entitle relief of any description. The present evidence in support of any suggestion of bad faith is quite inadequate. But, in any event, those allegations cannot give rise to relief at this stage. If bad faith were established, it could provide possible relief at a subsequent stage in the course of prosecution. Even assuming hypothetically that such proposition could be advanced, it could only be relied upon in the course of the New South Wales court proceedings, for example, in support of a demonstration of serious misconduct so as to stay the domestic prosecution as an abuse of process. This concept was discussed in Bou-Simon v Attorney-General (2000) 96 FCR 325 where the Full Court (Black CJ, Tamberlin and Katz JJ) said (at [36]):

We should mention at this point that neither the Attorney-General nor the DPP challenged the judge’s conclusion that if bad faith were established in connection with the extradition process, an Australian court might well intervene by ordering a stay of the prosecution in respect of which extradition was sought. Indeed, counsel for the Attorney-General implicitly accepted the correctness of the judge’s approach, submitting that his Honour had been correct in concluding that the intervention of the Court would only be justified if bad faith or deliberate deception on the part of the relevant Australian authority were established. He also submitted that the judge was correct in his conclusion that if intervention by the Court were ever justified, it would normally be by way of stay of the prosecution. Essentially, the Attorney-General’s submission was that to make out an abuse of process such as to justify intervention, it was necessary to establish that there had been a serious and deliberate abuse of executive power and that no abuse of that nature had been shown in the present case. In oral argument counsel for the DPP took a similar approach, stressing that before any intervention could be justified there would, at the least, need to be established what he described as “an actionable abuse of process” involving a deliberate attempt to mislead.

(Emphasis added.)

69    In relation to the seizure of phones, a fair reading of the request of Singapore was that any steps taken in Singapore by the authorities in connection with the phones should only be taken if the Singaporean authorities were satisfied it was lawful to do so. That qualification was expressly set out. In any event, as with the extradition request, a request by Australian authorities for a foreign state to assist it in criminal matters falls within the executive power of the Commonwealth. It is a matter for the law and courts of the foreign country to determine the legality of complying with such a request. In this instance, it is a matter for the Singaporean authorities. Again, if the evidence was improperly obtained in Singapore, or if its reception would be, for some other reason, unfair to the applicant, then there is discretion in the criminal trial court to exclude evidence on those grounds: see the discussion in Bollag v Attorney-General (Cth) (1997) 79 FCR 198 by Merkel J (at 211):

… Whether, and if so, to what extent, the Swiss authorities can lawfully use coercive power to comply with their obligations under the Treaty is to be determined in accordance with Swiss law. In these circumstances the fact that coercive investigative power, which might not be able to be exercised in Australia under Australian law, may be exercised in Switzerland in accordance with a request under the Treaty cannot, of itself, make the use of such investigative power unlawful. There may be circumstances where a power, exercised lawfully by a foreign country to obtain evidence as a result of a request for assistance whether under a treaty or otherwise, might offend public policy in Australia. If the evidence was improperly obtained in the foreign country or if its reception would be unfair to the accused then the criminal trial court has ample discretion to exclude such evidence on those grounds, which are not limited to unlawful conduct: see Foster v The Queen (1993) 67 ALJR 550 at 554; Pollard v The Queen (1992) 176 CLR 177 at 196 and Bunning v Cross (1978) 141 CLR 54 at 64, 74-75. In such circumstances the potential accused may have no basis for challenging the investigative power employed in the foreign country but that does not prevent the later objection to the use of its fruits in Australia.

Putting aside the provisions of the Act for the moment, applying the above principles to the present case:

•    the requests do not contravene Australian law

•    the requests have been accepted by the Swiss authorities as complying with the Treaty with the consequence that those authorities have provided and are continuing to provide the assistance sought in accordance with the Treaty

•    insofar as Bond and Bollag have alleged that their rights have been infringed under Swiss law they have had those allegations determined against them by the relevant judicial authorities and processes in Switzerland

•    Bond and Bollag have not demonstrated that any right that they might have under Australian law has been infringed by the requests or the requested conduct in Switzerland.

As pointed out above these conclusions cannot be affected by the provisions of the Act, as nothing in the Act forbids or prohibits the requests that have been made to the Swiss authorities. To the contrary, s 6 specifically provided that the Act is not to have such an effect.

(Emphasis added.)

70    There was no Australian law prohibiting the making of this request.

71    Secondly, on the topic of the phones, as noted by both parties, there is of course the Mutual Assistance in Criminal Matters Act 1987 (Cth) which provides a legislative framework for international assistance in criminal matters, but it does not forbid, limit or circumscribe the request for such assistance which may be made by the Commonwealth Executive: Bollag (at 210).

72    There is, therefore, no prima facie case for a challenge to any request made by Australian authorities for Singapore to deliver the applicant’s phones or any request for the extradition of the applicant.

CONCLUSION

73    In my view, for the reasons stated, the Court does not have jurisdiction to grant the relief sought. Even if it did have jurisdiction, no prima facie case is made out for an injunction, let alone for the giving of a direction to the respondent. The amended interlocutory application must be refused, with costs.

Associate:

Dated:    3 October 2018