FEDERAL COURT OF AUSTRALIA

O’Donoghue v Honourable Brendan O’Connor [2011] FCA 813

THE COURT ORDERS THAT:

1.    The applicant’s application to amend his grounds of review be dismissed.

2.    The applicant pay the costs of the first and second respondents to be taxed if not agreed.

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

REASONS FOR JUDGMENT

Introduction

1    The applicant applies to amend the grounds of review in this matter following the hearing of his substantive application for review but before delivery of judgment. He seeks to introduce a ground asserting fraud in respect to the extradition request document. The lateness of this application is said to be the result of fresh evidence which has come into the applicant’s possession. If successful in that course he then seeks leave to reopen his substantive application to argue that additional ground.

2    The Court has the power to grant leave for further evidence to be adduced after the trial of the proceeding has concluded and judgment reserved, fresh evidence being one of the four recognised classes of case in which a court may grant leave to re-open: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]. Kenny J stated in Bradshaw, at [24] and [26] that in every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open. Kenny J referred to Murray v Figge (1974) 4 ALR 612 in which Muirhead J held, at 613-614, that fresh evidence should only be admitted when: (a) it is so material that the interests of justice require it; (b) the evidence if believed would most probably affect the result; (c) the evidence could not by reasonable diligence have been discovered before; (d) inadvertence was established; and (e) no prejudice was suffered by the other party by reason of its introduction at a late point in time.

3    At the hearing of the substantive application on 13 June 2011 the applicant was represented by senior counsel. The applicant was not present in Court. He had been brought from prison to the precincts of the Court but for some reason was not then brought to the court room for the hearing.

4    Following correspondence from the applicant to the Court, the matter was relisted for hearing on 7 July 2011. At that further hearing the applicant appeared in person. The applicant advised the Court that he had been unable to find alternative counsel to assist him, and sought an adjournment. The court ordered that the matter be adjourned to a date to be fixed, and a further hearing took place on 21 July 2011.

5    At the hearing on 21 July 2011 the applicant again appeared in person. He provided to the Court and the first and second respondent's solicitors the "Applicants Further Submissions" dated 18 July 2011 and copies of five documents marked Annexures 1, 3, 4, 5 and 6. The applicant submitted that the extradition request from the Republic of Ireland dated 26 May 2004 was a fraud and sought to re-open his substantive application and to amend Ground 1 on the basis of fresh evidence constituted by the annexed documents.

6    Ground 1 provided relevantly as follows:

1.    The Attorney-General of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an “extraditable person”, and whether there was an “extradition objection” and made a jurisdictional and procedural error, in deciding to issue, and issuing, pursuant to s 16 of the Act, a Notice of Receipt of Extradition Request (the “s 16 Notice”) on 5 January 2005.

                Particulars

    (a)    According to information provided to the Applicant, pursuant to the Applicant’s freedom of information request of the Attorney- General’s Department, the request for the Applicant’s extradition by the Republic of Ireland had not properly been made prior to 24 May 2005.

    (b)    Consequently, the Attorney-General could not have been satisfied that a request for extradition had been made, prior to issuing the section 16 Notice.

    . . .

7    The Court made orders on 21 July 2011 that:

(a)    the applicant file and serve a minute of proposed amended Ground 1 of his grounds of review by 29 July 2011;

(b)    the applicant file and serve on or before 4 August 2011 an affidavit explaining why the documents relied upon by him in support of his application to re-open his application for review were not available to be produced to the court at the hearing of the substantive application on 13 June 2011; and

(c)    the respondents file and serve on or before 4 August 2011 any affidavit(s) in response to the application to amend Ground 1 of the Grounds of Review and re-open the substantive application and to file an outline of written submissions in reply.

8    Pursuant to the orders made on 21 July 2011 the applicant filed and served a Minute of Proposed Amendments to Grounds of Appeal dated 28 July 2011. The application is supported by affidavits sworn by the applicant on 4 and 5 August 2011.

9    The first and second respondents elected not to file any affidavits in response to the application to amend Ground 1 and re-open the substantive application.

10    The applicant’s affidavit of 4 August 2011 contains a considerable amount of irrelevant material. It is to an extent inaccurate. As the applicant conceded at the hearing of this application para 7 sets out the dates 7 July 2011 and 10 July 2011. These are typographical errors on the applicant’s part. They should have been 7 June 2011 and 10 June 2011.

11    The affidavit also seeks to explain the delay on the part of the applicant in bringing the “fresh evidence” to the attention of the Court. I will accept, for the purposes of this application, without deciding, that the delay involved, should the documents be fresh evidence, is satisfactorily explained.

12    The applicant’s affidavit of 5 August 2011 attaches a document entitled “CASEWORK-IN-CONFIDENCE” dated 18 November 2005. It is an internal note within the Attorney-General’s Department concerning a Freedom of Information Request by the applicant. The applicant refers to paragraph three of this document which states:

We are both of the view that all communications between Australia and Ireland in relation to this matter should be exempt under section 50 of the Extradition Act 1988.

13    This is a reference to the result of a discussion between the author of the document, a legal officer with the Extradition Unit of the Attorney-General’s Department, and the Director of that Unit.

14    The affidavit also attaches a document entitled “O’Donoghue – handover notes”. In para 3 it states “It may be that further litigation comes out of those documents”. Finally it attaches part of the transcript of the s 19 hearing before Magistrate Calder.

15    None of these documents would likely affect the result of the applicant’s proposed ground of alleged fraud. That this is so, is self-evident in respect to the first two documents. I will deal with the transcript later.

Allegation of fraud

16    By para 1.A(ii) of his Minute of Proposed Amendment to Grounds of Appeal, the applicant seeks to amend his application by adding the further ground:

That the Extradition request in the form of a diplomatic note now sought to be relied upon by Ireland and the Commonwealth of Australia and bearing a date of 26 May 2004 and issued or purported to be issued by the Irish Embassy in Canberra on 26 May 2004 lacks validity in law, is unlawful and is not genuine and is a fraud and that the document has not been produced to any Court in Ireland or Australia in Seven years of litigation or in disclosures under the Freedom of Information Act and has only come to light and been disclosed on 06 June 2011.

17    As to the last complaint in the proposed amended ground, I will accept, for present purposes, that the extradition request dated 26 May 2004 had not been disclosed to the applicant prior to his receipt of the affidavit of Ms Shannan Cutherbertson affirmed on 6 June 2011. The extradition request is Annexure "SEC1" to this affidavit. However, the extradition request, as opposed to the accompanying documents, was not required to be disclosed to the applicant for the proceedings brought under s 19 of the Extradition Act 1988 (Cth) or any previous hearing. It follows, for that reason, that the fact that the extradition request dated 26 May 2004 has only recently been disclosed to the applicant does not of itself lend any substance to his claim that that document is a fraud. The extradition request was produced in these proceedings because of the applicant's ground of application that when the s 16 notice was issued by the then Attorney-General on 5 January 2005, "a valid extradition request had not been received from the Republic of Ireland".

New evidence

18    The applicant's additional basis for seeking to amend his application by including this allegation of fraud is to be found within the documents he produced to the Court on 21 July 2011 which are marked Annexure 1, 3, 4, 5 and 6 to the "Applicants Further Submissions". The first and second respondents submit that even if these documents were not able to be produced to the Court at the hearing on 13 June 2011, they provide no foundation on which the Court should allow the applicant to amend his application.

19    The documents which are Annexures 3 and 4 do not constitute fresh evidence that was not available to be produced to the Court at the hearing on 13 June 2011. They were included by the applicant as attachments to his submission to the Attorney-General and the first respondent dated 15 July 2010. The two documents appear respectively at pp 159 and 160 of the affidavit of Peter John Corbould sworn 12 April 2011.

20    I will, for present purposes, assume in the applicant’s favour that the documents marked as Annexures 1, 5 and 6 constitute fresh evidence.

21    However, Annexures 5 and 6 do not provide any support for the applicant's allegation that the extradition request dated 26 May 2004 is a fraud. The email which is Annexure 5 states that the extradition request was received on 25 May 2004. Paragraph 1 of Annexure 1 also states that the request for extradition was made on 25 May 2005. The extradition request under seal, which is in evidence, is dated 26 May 2004. The dates in these Annexures are likely to be held to be errors given the other evidence referred to above. Indeed, there is a further error in a date in para 2, which refers to a meeting that the applicant had with Senator Ellison on 18 May 2005, and that the applicant had sent an email which arrived the day after the meeting, although it was dated 18 May 2004. This ought, plainly enough, to have stated “18 May 2005”. Each of these documents is, in any event, secondary evidence. The best evidence is the actual request for extradition dated 26 May 2004 under the seal of the Embassy of Ireland, Canberra. There is no evidence which supports the applicant’s submission that the “Request does not exist and has never existed.”

22    The applicant also made submissions concerning two copies of the same “Casework-in-Confidence” memo from within the Attorney-General’s Department dated 5 January 2005, the day the s 16 notice was issued. The memo, in effect, is a briefing paper to the Attorney-General concerning the extradition request relating to the applicant and contains a recommendation that the Attorney-General sign the s 16 notice.

23    Each copy of the memo has a signature page denoting the proposed signees: Robin Warner, the Assistant Secretary of the International Crime Branch, within the Department, as well as the Attorney-General. One copy is signed by Robin Warner only. The other is signed by the Attorney-General only. The applicant tried to make something of this separation of signatures going to his allegation of fraud. Two things may be said about this. First, the documents do not constitute fresh evidence. Second, the documents are simply counterparts of the same document. It is quite common for parties who are not at the same location, and there is evidence of this here, to sign separate copies of the same document. This gives rise to no inference tending toward any finding of fraud related to the extradition request.

24    The partial transcript of Magistrate Calder in the applicant’s s 19 hearing, annexed to the applicant’s affidavit of 5 August 2011, contains the following passages:

As was indicated in the authority that I was referred to, Kainhofer, my duty is to proceed on the basis that the section 16 notice valid unless on its face. It wasn’t. In my view the document that has been tendered is not ex facie valid. I have the (sic) perused the contents of exhibit 6, together with exhibit 5, and in particular in exhibit 5 the copies of the warrants that form part of the documents upon which Ireland relies.

. . .

The contents of exhibits 5 and 6, in my view, provide very detailed particularisation of everything that Mr Perkins has said his client is entitled to look at in terms of particulars.

25    These passages contain what are, highly likely to be found, if admitted, errors of syntax and transcription.

26    The first sentence ought to have the word “is” after the word “notice” in order to make sense. Likewise there should not be a “full stop” after the word “face”. Plainly enough that first sentence should also include the words in the second sentence “It wasn’t”. The sentence thus should read:

… my duty is to proceed on the basis that the section notice is valid unless on its face it wasn’t.

27    I was not provided with the entirety of the transcript of the hearing before Magistrate Calder but the s 19 proceedings were determined adversely to the applicant. Obviously Magistrate Calder was satisfied that the s 16 notice was valid. It follows that the third sentence contains an error in that the word “not” should not be there. The sentence should in its relevant part read:

… the document that has been tendered is ex facie valid.

28    Apart from the result of the proceeding, this error is evident from the wider context of the transcript. In any event the transcript is not fresh evidence.

29    The first and second respondents submit that given the nature of the fresh evidence sought to be adduced by the applicant and the allegation of fraud which the applicant contends the evidence supports, the interests of justice are better served by rejecting the application for leave to re-open. Set against the existing evidence and the nature of the fresh evidence sought to be adduced, the fresh evidence is highly unlikely to affect the result. In other words, were the proposed amendment to be allowed the so-called fresh evidence is highly unlikely for reasons I have given to make out that ground. Part of the evidence was not, in any event, fresh evidence.

30    Moreover, the following evidence already before the Court is such as would most likely demonstrate that the extradition request dated 26 May 2004 was received prior to the notice issued pursuant to s 16 of the Extradition Act by the then Attorney-General on 5 January 2005. It follows that the extradition request would almost certainly be held to be genuine and not a fraud.

31    First, the formal documents accompanying the extradition request bear various dates prior to 26 May 2004. For example, the certification document at pages 11 and 12 of Annexure "SEC2" to Ms Cuthbertson's affidavit is dated 12 May 2004. The arrest warrants at pages 16 to 47 of Annexure "SEC2" are all dated 24 March 2004, and each bears an authentication stamp dated 12 May 2004. The applicant does not assert that these documents are fraudulent.

32    Second, the Diplomatic Notes from the Republic of Ireland dated 23 December 2004 and 24 March 2005 (at pages 74 and 91 of Ms Cuthbertson's affidavit) each refer to the “Note (Ref VOD/01) dated 26 May 2004”, which is the reference number of the extradition request dated 26 May 2004 bearing the seal of the Embassy of Ireland, Canberra, at Annexure "SEC1" to Ms Cuhbertson's affidavit. Each note states that it submits a document, namely a statement made pursuant to Article V of the Treaty on Extradition between Ireland and Australia done on 2 September 1985, to supplement the extradition request already made via the Irish Embassy in Canberra dated 26 May 2004. The applicant does not claim that either of these two Diplomatic Notes are frauds.

33    Third, the Attorney-General's Department's submission to the former Attorney-General in relation to the issuing of the s 16 notice refers to Ireland submitting an extradition request on 25 May 2004: para 9 at pages 167 and 175 of the affidavit of Peter John Corbould sworn 12 April 2011. That, I infer, is a reference to the extradition request from Ireland dated 26 May 2004.

34    Fourth, one of the documents upon which the applicant relies in support of his application to amend and re-open his application is the email sent by Mr R Hollands of the Attorney-General's Department dated 20 May 2005 marked Annexure 5, which also refers to a request for the applicant's extradition to Ireland being received on 25 May 2004. As with the two further Diplomatic Notes referred to above, I find that it is highly likely that this would be found to be a reference to the extradition request dated 26 May 2004.

35    The reference, in Mr Holland's email and in the Departmental submission to the former Attorney-General, to the extradition request being received on 25 May 2004 may simply be an error, and the extradition request was received on 26 May 2004. Alternatively, the extradition request may have been incorrectly dated 26 May 2004 and was actually delivered on 25 May 2004. Whatever be the case it is a very minor discrepancy which is not likely to lend support to the applicant's contention that the extradition request dated 26 May 2004 is a fraud.

36    In any event, I note that s 6 of the Extradition Act does not require an extradition request to be dated: merely that “where the Attorney-General receives an extradition request from an extradition country …”. The Attorney-General may issue a notice directed to any magistrate stating that the request has been received. The totality of the evidence would highly likely lead to a finding that such a request was received before the notice was given under that provision by the then Attorney-General. A copy of the notice is annexed to Mr Corbould’s affidavit at page 169.

Further proposed grounds of review

37    The applicant further seeks to amend his grounds of review by adding the "grounds" set out at para 1.A(i) and paras 1.A(iii) to 1J.(i). I accept the submission of the first and second respondents that these are more in the nature of submissions rather than properly formulated grounds of review and largely cover matters already the subject of the applicant's submissions in the substantive application. Further, there is no basis for these proposed additional grounds of review in the "fresh evidence" constituted by the documents at Annexures 1, 3, 4, 5 and 6 to the "Applicants Further Submissions".

38    For all these reasons I would refuse the application to amend Ground 1 of the grounds of review to include the proposed ground that the extradition request dated 26 May 2004 is invalid as being a fraud, and also refuse the application to re-open the substantive application.

39    The applicant ought pay the costs of the first and second respondents to be taxed if not agreed.

Associate:

Dated:    29 August 2011