FEDERAL COURT OF AUSTRALIA
Castle v United States [2018] FCA 931
ORDERS
Applicant | ||
AND: | First Respondent JUDGE RIETHMULLER Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The applicant’s objection to the jurisdiction of the second respondent to conduct proceedings under s 19 of the Extradition Act 1988 (Cth) in respect of the applicant is dismissed.
The court declares that:
1. This Court has jurisdiction to hear and determine, pursuant to s 21 of the Extradition Act 1988 (Cth), the applicant’s application for review of the orders made by the second respondent pursuant to s 19 of the Extradition Act 1988 (Cth) on 8 December 2017.
The Court directs:
1. The matter be listed for hearing of the application for review under s 21 of the Extradition Act 1988 (Cth) on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MORTIMER J:
Introduction and summary
1 Mr Castle was arrested pursuant to a warrant issued under s 12 of the Extradition Act 1988 (Cth). He is the subject of a request for extradition from the United States of America. He is presently held on remand in Fulham Correctional Centre, and represents himself in this proceeding, having declined the Court’s offer of trying to secure pro bono representation for him.
2 Mr Castle informed the Court at the first case management hearing in this proceeding that he objects to the Court’s authority, under the Extradition Act, to deal at all with the extradition request from the United States. He claims, in a way I describe in more detail later in these reasons, to be immune from the processes of the Extradition Act. He sometimes describes himself as having “international protection”. However, I consider that to describe his claim as a claim to immunity from the processes under the Extradition Act best captures his argument.
3 Mr Castle made the same objection to the Federal Circuit Court judge who dealt (in his personal capacity) with the proceedings pursuant to s 19 of the Extradition Act. He makes a similar objection to being subject to any of the other processes under the Extradition Act, although he accepts in this proceeding the Court is concerned only with a review of the s 19 process. The combination of his determination to pursue this claim, the nature of his claim and the fact he is representing himself, have resulted in a tangle of arguments about this Court’s jurisdiction.
The procedural history in summary
4 On 10 July 2017, Mr Castle was arrested under a warrant issued pursuant to s 12 of the Extradition Act.
5 A notice under s 16(1) of the Extradition Act was signed by the then Minister for Justice on 28 July 2017, stating that an extradition request had been received from the United States of America in relation to James Christopher Castle. The s 16 notice stated Mr Castle was also known as Chris Castle and James Castro. It nominated the following extradition offences:
• one count of conspiracy to defraud the United States in violation of Title 18, United States Code 371 ;
• one count of conspiracy to commit bank fraud and false making of lending agency writings in violation of Title 18, United States Code section 371;
• 15 counts of bonds and obligations of certain lending agencies in violation of Title 18, United States Code section 493;
• 21 counts of bank fraud in violation of Title 18, United States Code section 1344(1);
• one count of transactions in criminally derived property in violation of Title 18, United States Code section 1957.
6 The conduct constituting the extradition offences is set out in the supporting documents which are before the Court in this proceeding, and I refer to that conduct in summary below.
7 Mr Castle did not provide any consent to his surrender, as he could have done under s 18 of the Extradition Act. Accordingly, the next stage of the extradition process commenced: namely, a hearing under s 19 of the Extradition Act to determine Mr Castle’s eligibility for surrender in accordance with the United States’ request.
8 There was also an extradition request made by the United States in relation to another individual, Ms Lara Karakasevic. She has also, at times, been known as Lara Castle, and is, as I understand it, Mr Castle’s wife. Her extradition was sought, as I understand it, in relation to the same series of events as those which gave rise to the request by the United States for the extradition of Mr Castle.
9 Under s 19, a determination of eligibility for surrender can be made either by a State magistrate, or by an “eligible Federal Circuit Court judge”. Section 5 of the Extradition Act defines the latter term as:
eligible Federal Circuit Court Judge means a Judge of the Federal Circuit Court of Australia in relation to whom a consent under subsection 45A(1) and a nomination under subsection 45A(2) are in force.
10 The consent process under s 45A of the Extradition Act reflects the fact that a Federal Circuit Court judge (or a State magistrate) conducts the s 19 eligibility hearing in a “personal” and administrative capacity, rather than in an exercise of judicial power: see O’Donoghue v Ireland [2008] HCA 14; 234 CLR 599 at [40], referring to Pasini v United Mexican States [2002] HCA 3; 209 CLR 246; Vasiljkovic v Commonwealth of Australia [2006] HCA 40; 227 CLR 614. I will refer to the Federal Circuit Court judge who conducted the s 19 hearing as the “s 19 judge”.
11 There were several hearings before the s 19 judge throughout middle and late 2017, including for the hearing of a bail application by Mr Castle (on 15 August 2017). Mr Castle’s bail application was refused. It appears Mr Castle represented himself at these hearings, with the exception of a hearing on 12 July 2017, when both he and Ms Karakasevic were assisted briefly by a duty lawyer from Victoria Legal Aid.
12 Mr Castle presented his arguments in opposition to his extradition at a hearing conducted on 23 October 2017. He also presented arguments on behalf of Ms Karakasevic at this hearing, in relation to her s 19 hearing. On this occasion she asked to be called Mrs Castle, Karakasevic being her maiden name, she claimed. Mr Castle is recorded in the transcript of the hearing on that day as accepting that his s 19 hearing, and that of Ms Karakasevic, could proceed together.
13 Mr Castle’s arguments were not limited to his eligibility for surrender in accordance with the terms of s 19 of the Extradition Act. They ranged more widely than that, including arguments about whether he and Ms Karakasevic had different “corporate” forms, other than being, as Mr Castle put it, a man and a woman. His arguments were also focussed on his claim to immunity, as they are in the present proceeding.
14 The s 19 hearing resumed on 8 December 2017. Ms Karakasevic also appeared. However she informed the s 19 judge that she waived her opposition to the extradition request from the United States. After explaining a number of matters to her, and asking her a series of questions, the s 19 judge was satisfied Ms Karakasevic had agreed to waive the s 19 proceedings, and understood that she would be extradited to the United States. After finalising the matters which needed to be dealt with because of the position taken by Ms Karakasevic, the s 19 judge then turned to deliver reasons for his decision on the s 19 application in relation to Mr Castle.
15 The s 19 judge’s reasons were not produced as a separate document but appear in the transcript of the hearing on 8 December 2017. The s 19 judge determined Mr Castle was eligible for surrender and made orders accordingly under s 19(9) of the Extradition Act.
16 On 22 December 2017, Mr Castle applied for review of the s 19 judge’s order under s 21 of the Extradition Act.
17 From the first case management hearing in this Court, Mr Castle made it clear that he continued to insist there was no “jurisdiction” (neither in the s 19 judge, nor in this Court) to make any orders relating to his extradition. He continued to insist he was immune from such processes. He informed the Court that he may wish to make a further application for bail, but insisted that once his arguments about this immunity were understood, he would be released in any event. He agreed that his principal challenge in the s 21 review remained to the question of his asserted immunity from extradition processes.
18 After I explained the steps in the surrender eligibility decision, and therefore in the s 21 review, to him, Mr Castle made it clear he did not wish at that time to articulate any precise grounds he wished to raise about the s 19 statutory criteria concerning the supporting documents, dual criminality, any requirements under the Extradition Treaty with the United States and any extradition objection. Instead, he continued to return to issues connected with what he contended was his immunity from extradition processes. He submitted this needed to be dealt with before any other matter, including any further bail application. Mr Castle has, in his appearances before me, foreshadowed being released from custody on the basis of his asserted immunity on several occasions.
19 The United States did not oppose such a course, although it expressed some concern because of its view that there was no merit at all in Mr Castle’s “jurisdiction” (or immunity) argument, and that the remainder of the s 21 review would be delayed.
20 Ultimately I determined it was appropriate, particularly given Mr Castle had some constraints around his ability to represent himself, because of his incarceration, to deal first with the issue that Mr Castle said was a complete answer to the extradition request by the United States, and went to this Court’s jurisdiction.
21 I made orders that the question of this Court’s jurisdiction to deal with Mr Castle’s eligibility for surrender be dealt with separately and ahead of any other issues in the s 21 review.
22 The proceeding was programmed accordingly. As part of the programming orders, Mr Castle was directed to submit an outline of his case. He submitted this document in accordance with the Court’s directions. The case outline provided by Mr Castle sets out the arguments he intends to make in relation to the review under s 21 of the Extradition Act: in essence, amending or providing further detail in relation to the grounds of review outlined in his originating application.
23 I can say at this point, that Mr Castle has been co-operative with, and respectful of, the Court’s processes. I add that my impression of him is that he is an intelligent person. He had no apparent difficulty comprehending the matters explained to him, or in formulating his arguments.
24 A protocol was put in place to enable Mr Castle to communicate effectively with the Court and the United States’ legal representatives. The Court is grateful to the Commonwealth Attorney-General’s Department, Corrections Victoria and the Fulham Correctional Centre for producing and adhering to that protocol. Although from time-to-time Mr Castle expressed some frustration with the constraints that his incarceration imposed, and understandably so, by and large the protocol has enabled Mr Castle to provide and receive documents and to prepare for the hearing.
The allegations against Mr Castle which provide the basis for the extradition request
25 I propose to give a summary of these allegations, so that the contentions of Mr Castle about his immunity can be set in context. This summary is taken from the affidavit of Audrey B. Hemesath, sworn 3 October 2017, which formed part of the supporting documents before the s 19 judge. Of course, at the moment these are not more than allegations against Mr Castle.
26 In summary, the United States alleges that Mr Castle was the mastermind of a complex fraudulent lending scheme, aimed at homeowners in financial difficulties and in danger of losing their homes to foreclosure proceedings. It alleges Mr Castle, and his several co-conspirators, sold approximately 37 properties in furtherance of the scheme with proceeds of sale totalling in excess of $8 million USD, and put another approximately 97 properties through some phases of the “fraudulent” scheme. The legitimate mortgage loans that Mr Castle and his co-conspirators are alleged to have sought to remove, and replace with their own fraudulent “loans”, are alleged to have totalled $60 million USD.
27 The extradition offences arose out of an investigation by the United States Federal Bureau of Investigation (FBI), and concern alleged conduct between 22 April 2010, and 18 November 2011. The United States alleges Mr Castle conspired with others to perpetuate what was described to prospective consumers as a “mortgage elimination program”. Homeowners who were at risk of losing their homes were recruited with the promise of relief from foreclosure, and were allegedly promised they would receive the “protection” of two spiritual organisations – “Shon-te-East-a, Walks with Spirit” said to be a “church”, and the “Pillow Foundation”. The United States alleges Mr Castle arranged for his co-conspirators to target homeowners who had a specific profile – being people whose property value was less than the amount owed to the mortgage lender, and who were in danger of foreclosure, but foreclosure was not then imminent. These homeowners were recruited through seminars held in several locations in California, and elsewhere.
28 At the seminars, and through representations made to homeowners, it was explained (allegedly by Mr Castle and his co-conspirators) that they would receive three things: an opportunity to avoid foreclosure and the resulting negative impact on their credit; a possible tax write-off when the home was ostensibly donated to a church (being the two entities “Shon-te-East-a, Walks with Spirit”, and the “Pillow Foundation”) and some percentage of the sales proceeds from their houses, usually represented to be around 20% of the “short sale” profit.
29 However, the United States alleges a “key component” of the scheme was that homeowners were not given the option of remaining in their homes. Each homeowner had to agree to sell their home to participate in the “mortgage elimination program.” Participating in the scheme generally involved, the United States alleged, signing a contract with Mr Castle or one of his co-conspirators and a membership application with the Shon-te-East-a church or the Pillow Foundation, among other documents. Both these entities were allegedly represented to be tax exempt religious organisations. One of the alleged co-conspirators, John Michael Di Chiara, was alleged to have named himself the “archbishop” of Shon-te-East-a and of the Pillow Foundation, although neither organisation had any physical location for worship.
30 The United States alleges homeowners were required to assign or convey their homes to Shon-te-East-a or the Pillow Foundation, and this was represented to homeowners as the making of a charitable donation to a religious organisation, with the possibility of a tax deduction. The United States alleges the transactions involved the creation by Mr Castle of a number of fraudulent documents such as “fictitious deeds of trust, falsely made deeds of re-conveyance, and falsely made notices of rescission of notice of default”, all of which gave, the United States alleges, the “misimpression that the legitimate lenders on the homeowners’ properties had been repaid, and that the only debt owing was to an entity controlled by one or more members of the conspiracy”. This was, the United States alleges, not the case at all, and the mortgagees were unaware of the transactions. Contrary to the representations made to the homeowners by Mr Castle and his co-conspirators, the United States alleges that in reality, responsibility to repay the loan(s) to the financial institution(s) remained with the homeowners at all times.
31 Having obtained a purported transfer of proprietary interest in these homes, the United States alleges Mr Castle and his co-conspirators then caused the creation and recording of a sham lien on the properties, identifying corporate entities they controlled as the new lender on the property. The United States alleges they selected an arbitrary amount to fill in for the bogus new loan, always higher than the original, real loan amount, to give the illusion that the property had been refinanced. In fact, the United States alleges, the bogus liens did not secure any real loan, but were used as a basis to secure the fraudulent re-conveyance of the properties from the financial institution(s) that actually held the mortgage. This involved using third parties, the United States alleges, who used their real name and signature, and signed a fraudulent deed of re-conveyance “as if the trusted person was an authorized representative of the financial institution that actually held the mortgage”. These fraudulent deeds of re-conveyance were then recorded at the county recorder’s office. The financial institutions were unaware that the fraudulent deeds of re-conveyance had been recorded, and in some cases the homeowners were asked to sign confidentiality agreements about this “mortgage elimination program”.
32 The United States alleges many mortgagees commenced foreclosure proceedings once further (inevitable) defaults on repayments occurred (because the houses had in fact been “transferred” to Shon-te-East-a and the Pillow Foundation). Again, the United States alleges, a fraudulent scheme was used (through these “trusted individuals” to cause a fraudulent notice of rescission or notice of default to be recorded, the effect of which was to cause the notice of default (issued by the financial institution) to become unenforceable, such that the lender would be unable to proceed with foreclosure. The United States alleges these notices of rescission were recorded and typically sent to the homeowner via US Mail. The effect of these fraudulent notices was to “clear” the homes from any mortgage or debt, and enable them to be put up for sale. The United States alleges that Mr Castle and his co-conspirators, through corporate entities and through holding themselves out as lenders, acted as the lender who was purportedly still owed money, and typically sent to the escrow agent a demand letter approving the short sale of the property. The United States alleges these entities then approved a short sale amount that was typically just a fraction of the bogus loan amount stated in the fraudulent deed of trust recorded just a few months earlier. The escrow agent, the United States alleges, would be deceived into believing the entities controlled by Mr Castle and his co-conspirators were the primary lien-holders on the property and the legitimate lenders had no valid security interest in the property and did not need to be paid when a sale was closed. Thereafter, the United States alleges Mr Castle and his co-conspirators received the funds and split the proceeds according to prearranged agreement. As a leader of the alleged conspiracy, the United States alleges Mr Castle received a greater share of the proceeds.
33 The United States alleges that the outcome of the scheme was that the real liens on the property by the genuine financial institutions were never satisfied by the fraudulent short sale of the homes, and in many cases, the financial institutions continued the foreclosure process. It would appear the outcome for homeowners was that they had moved out, lost the control of the title to their property, and yet faced a foreclosure proceeding to repay the debt still owed to the financial institutions.
34 Ms Hemesath deposes that Mr Castle was indicted by a federal Grand Jury on 10 September 2015, but that during the course of the investigation, Mr Castle and Ms Karakasevic and their children moved to New Zealand, where they remained until August 2014. The family (by this time including four children) then came to Australia on a ninety day visitor’s visa.
Mr Castle’s arguments about his immunity
35 In the first case management hearing, Mr Castle described the immunity he contends he has from the extradition process as “above” diplomatic immunity.
36 Mr Castle filed a great deal of material before Riethmuller J, some of which he has also relied on in this Court. He has sought to file a considerable amount of additional material. Broadly, the material falls into the following categories:
(1) Mr Castle’s own documents, including two affidavits, a signed “declaration” and correspondence.
(2) Documents said to be from “David A Sale”, who Mr Castle identifies as the “International Treasury Controller”. These documents include correspondence, documents described as “affidavits”, and a document described as an “Official Order/Directive”.
(3) Other documents describing the “History and Powers of The International Treasury Controller”, some from other individuals said to have expertise relating to the International Treasury Control, or who are said to be able to provide confirmation of the “verification process” that Mr Castle claims will be able to prove his status as an “internationally protected person”.
37 Mr Castle’s material describes the origins of the International Treasury Control in the following way:
As stated in the exhibit submitted to the record on August 14th, 2017, entitled The History and Powers of the International Treasury Controller (Exhibit No. 3),
“On January 20, 1945, the Governments of the World approved and agreed the election and appointment of an Independent person as The International Treasury controller whose authority is recorded ... under International control No. 1060847 and the/His Ownership of the International Collateral Combined Accounts of the Global Debt Facility ...”
Simultaneously, the Office of The International Treasury Control (OITC) was created and granted/bestowed with its own Sovereignty status (Completion and formalisation of The OITC was finalised in 2003) to ensure that it stands independent and under its own legal jurisdiction, away from undue influence, duress, or any impediment from any other Sovereign nation or International Organisation. As such, this Office and the Controller himself are highly geopolitical and subject to Internet conjecture.
38 Mr Castle contends that the individual he identifies as “David A Sale” is the International Treasury Controller.
39 In the “request for review” document that he filed, Mr Castle included a “Point summary” which does, as the heading suggests, summarise the contentions he makes. I reproduce here all of that “Point Summary”:
• James Christopher, Castle, is an Internationally Protected Person (IPP), is not subject to extradition from AUSTRALIA to the UNITED STATES; (Exhibit 14)
• James Christopher, Castle holds the status of an IPP with Level 3rd-5th full jacket international immunity; (Exhibits 1, 2, 6, 13)
• Long standing international policy, law and treaties categorically prohibit prosecution of diplomats and other IPP’s; (Exhibit 7)
• AUSTRALIA can expel a diplomat or other IPP, but cannot surrender him to another country for prosecution as clearly delineated in both AUSTARALIAN and International Law;
• The AUSTRALIAN courts are courts of limited (subject matter) jurisdiction.
o The first element that the prosecution must establish in this and every other case is the jurisdiction of the court to hear the matter,
o The prosecution has utterly failed in this regard because James Christopher, Castle is an IPP and this court has no jurisdiction to consider the extradition of an IPP;
• The burden is on the prosecution to establish every element of the extradition case, starting with the jurisdiction of the court over the matter.
o In this matter, the AUSTRALIAN ATTORNEY GENERAL’S (AAG) Office (ICCCA) representing the UNITED STATES has ready access to establish the existence (or lack) of James Christopher, Castle’s IPP status. Two immediate avenues are:
• Through the AUSTRALIAN Prime Minister; or
• Through the USAG Office to the President.
However, the AAG Office has utterly failed its burden on this issue, and in fact has not ever attempted to implement the protocol to address this issue;
• Judge Riethmuller court could have made its own enquiry into its jurisdiction by implementing the required protocols to verify James Christopher, Castle’s IPP status, but he refused to do so (and refused to require the AAG Office to do so);
• The Court also effectively prevented James Christopher, Castle from obtaining his own verification of his IPP status in a timely manner ... by denying James Christopher, Castle bail and instead remanding him to a facility where he has no ready access to telephone, email, computer, electronic research; internet or other means of speedy communication;
• If the Court is to truly consider the evidence before it concerning James Christopher, Castle’s status, then any Order must provide that James Christopher Castle is not surrendered until and unless the verification protocol is followed and verification is not subsequently received. (see Exhibit 14);
• James Christopher, Castle respectfully requests that the Court deny the request for extradition based upon failure to establish jurisdiction. Alternatively, since the AAG and the US Federal Attorney (USFA) each have the ability to initiate a verification request according to the established International Treasury Controllers protocols, James Christopher, Castle requests that the Court enter an Order denying extradition and releasing James Christopher, Castle UNLESS, WITHIN TWO (2) WEEKS of the Order, the said AAG/USFA provide admissible evidence that the International Treasury Controller has declined to verify James Christopher, Castle’s employment following verified initiation of the appropriate verification protocols made by an appropriate Royal or qualified Head of State.
40 At the hearing Mr Castle developed some of these arguments, in ways that where necessary I discuss in the “Resolution” section of these reasons below.
What jurisdiction has Mr Castle sought to invoke?
41 A matter raised by the United States, properly, was what jurisdiction Mr Castle had sought to invoke when he filed his original “request for review” document on 22 December 2017, and again when he filed his “outline of case” and his amended “request for review” document in February this year. It is the latter document to which I refer below.
42 The Court’s jurisdiction is particularly important because of the constraints on the reception of evidence imposed by s 21 of the Extradition Act, if that provision is the Court’s only jurisdiction. Plainly, the nature of the Court’s jurisdiction also affects the available relief.
43 Read with the “outline of case” he was ordered to file, Mr Castle’s “request for review” document contains statements that indicate attempts to rely on several sources of jurisdiction available to this Court, with no clear delineation between them. That is not a criticism of Mr Castle – as a lay person, identifying and delineating sources of jurisdiction for a Court is, it can be accepted, a real challenge.
44 In MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158 at [59]-[77] I outlined the nature of the Court’s duty to assist a self-represented litigant. Adopting that approach, I propose to read Mr Castle’s review application and outline of case as fairly and generously as it is possible to do, in order to determine what jurisdiction, exercisable by this Court, he seeks to invoke. Counsel for the United States did not object to such a course and indeed, properly in my opinion, adopted the same approach.
45 In his covering letter enclosing the outline of case and the amended review application, Mr Castle stated:
…please find the Applicant’s outline of the request for Review of s.21 Extradition request. This matter to be heard post outcome (if necessary) of a Jurisdictional question outcome.
Also, please find an amended Jurisdictional matter submission with exhibits not on record. This submission supersedes any previous submission, including the posted document sent ….
46 Consistently with these statements, Mr Castle’s outline of case focussed on the matters that would ordinarily be considered in a s 21 review. I had explained these matters in summary to Mr Castle at the first case management hearing. His outline of case states:
I submit this document under compulsion and Order dated 01 February 2018. I do so without waiving my jurisdictional objections. Jurisdiction evidence to be submitted under separate cover and to be discussed separately.
Under said Order, I respond to point 3. b) items i-v:
i. Arguments in relation to the purported offence; Responses to the Hemesath and Stier Affidavits refuting the vast majority of the claims made within in their entirety as erroneous, without merit and void.
ii. None
iii. Arguments in relation about dual criminality; As the affidavits upon which the purported offenses are disputed as false, there is no claim in effect upon which remedy may be granted. Also, as an Int’l Protected Person, Australia, by law, cannot extradite.
iv. Arguments in relation to extradition objection; Applicant has ample and deep concern that because of his exercising his 1st amendment rights to free speech and political opinion that he is the focused target of vengeance and retribution by the banking industry via the judicial system.
v. Other arguments; Other than that of jurisdiction, being heard prior and separately, Applicant has no other objections at this time, but withholds their right to make such claim.
This concludes Applicants outline of the s.21 Administrative aspect of the request for Review.
47 It is clear, in my opinion, that Mr Castle considers, and puts forward, his immunity argument – which he calls the “Jurisdictional matter” – as a separate contention, and that he seeks to invoke this Court’s judicial review, or supervisory, jurisdiction to make that argument.
48 It is true the first sentence in the “request for review” document submitted in February 2018 states:
In the matter of An Application Pursuant to the Extradition Act (1988) (Cth) – JAMES CHRISTOPHER CASTLE
49 However, read in context, this is no more than an introductory statement, recognising that the Extradition Act is the Australian statute invoked by the United States for its request.
50 On the first page of the review application, Mr Castle alleges that “this court has no jurisdiction to consider the extradition of an IPP”. As is apparent from the extract above at [39], the acronym “IPP” is used by Mr Castle to mean internationally protected person. He appears to contend this is a status conferred (on him, amongst others) by “long standing international policy, law and treaties”.
51 The document goes on to recite a lot of the information appearing in other documents adduced by Mr Castle concerning the International Treasury Control. However, when Mr Castle turns in the document to refer to the decision of the s 19 judge, he identifies what he describes as a “material error of fact”, contending this constitutes a “material error of law”. He refers to City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135, to the Administrative Decisions (Judicial Review) Act 1977 (Cth), and also to extracts from a publication by Lexis Nexis.
52 Mr Castle then refers to the Crimes (Internationally Protected Persons) Act 1976 (Cth), and the definition of “internationally protected person” in that Act, contending the definition describes Mr David A Sale.
53 Mr Castle’s review document then has a heading “ULTRA VIRES – JUDICIAL ERROR”. Underneath this heading, Mr Castle sets out five dot points of what he contends are “judicial errors” by the s 19 judge:
• Acting under colour of law by assuming authority of state is superior to International obligation under Treaty;
• Failing to recognise and adhere to the Australian Constitution, Australian Law and Australian Treaties ratified by the Australian Legislature (October 23, 2017 Hearing transcript: p29, lines 10-45);
• Ignoring Sovereign authority and obligation to International Treaties;
• Dismissing evidence Noticed to the Court and referring to it as ‘rubbish’ (Aug 15 2017, p7, line 30; p12, line 15); the contents of such Notice clearly stating the authority and status of His Excellency David A. Sale, Legal Heir, Owner, and Sole Arbiter of the assets and accounts of the Global Debt Facility, a “Sovereign” in His own right holding International Protected person status combined with International/ United Nations Level 3-5 Immunity and Protectorate with His own Legal Jurisdiction as registered and recorded under the Great Seal of America No: 632-258894 and the United Nations Charter Control No: 10-6084 (October 23, 2017 Hearing transcript: p30, lines 17-47) (Exhibit No: 9); and
• Refusal to allow witnesses to take the stand to provide pertinent facts. During the August 15, 2017 Hearing Judge made it clear witnesses were to be called at the October 23, 2017 Hearing (transcript: Aug. 15th - p24, lines 14-41). An Agent for the ITC was present during the 23 October 2017 hearing ready to present sworn testimony validating the authority of the International Treasury Controller and the International Treasury Control (transcript: p25, lines 8-10) but was refused. (Exhibit No: 11, Affidavit of Gordon Douglas Matthews)
54 It is clear enough that by identifying these matters and describing them as “judicial errors”, read with what precedes this section, and its heading, that Mr Castle is seeking to have this Court exercise a supervisory jurisdiction over the decision of the s 19 judge.
55 A couple of pages further on, the review document has a heading “ACTING IN BAD FAITH”. Under that heading Mr Castle makes another series of allegations against the s 19 judge. He employs the language of judicial review in this section – “Failing to take a relevant consideration into account”, “abuse of power” and “bias”.
56 The review document then spends several pages challenging the validity of references by the s 19 judge to having conducted google searches, and challenging the Wikipedia entries about Mr David A Sale that are available on the internet. Those challenges need not be set out in these reasons, but it is reasonably clear this part of the review document is intended to form part of the reasons why Mr Castle contends the s 19 judge was biased, abused his power and failed to take relevant considerations into account.
57 The relief sought in the review document is twofold. The document uses the word “motion” which, given Mr Castle comes from the United States, is understandable. The first “motion” seeks relief which fits with Mr Castle’s perspective on his immunity: namely, an order from the Court requiring “both the Australian and United States governments undertake a full official verification, based upon the protocol placed before it, to establish their INTERNATIONAL PROTECTED PERSON STATUS by way of verifying the authority of His Excellency David A. Sale, the International Treasury Controller”. Mr Castle contends that this verification will result in his “inevitable” release from custody.
58 The second “motion” is to “quash the warrant of remand” and quash the “border protection intention to deport”. The second matter can be disregarded as it clearly relates to Mr Castle’s immigration status. However, the first matter again employs language that makes it reasonably clear Mr Castle invokes this Court’s supervisory jurisdiction.
59 Accordingly, I am satisfied, reading the document fairly, that Mr Castle intends to invoke this Court’s jurisdiction under one of the two available avenues for judicial review. In Mr Castle’s original review application there was a reference to the AD(JR) Act. However, I note the AD(JR) Act is unlikely to provide a source of jurisdiction, as matters arising under the Extradition Act are excluded by s 3 and Sch 1 (item (r)) of that legislation.
60 As counsel for the United States submitted, the more likely source of the Court’s jurisdiction is s 39B(1) or (1A) of the Judiciary Act 1903 (Cth).
61 As counsel for the United States also submitted, there are some issues of complexity which arise if judicial review of the s 19 judge’s decision is sought under s 39B(1) of the Judiciary Act, including whether the s 19 judge is an “officer of the Commonwealth”, a matter not yet determined by the High Court: see Vasiljkovic v the Commonwealth [2006] HCA 40; 227 CLR 614 at 646-7 at [102] per Gummow and Hayne JJ. It is correct that s 39B(1A)(c) of the Judiciary Act may be an available source of jurisdiction, on the basis there is a “matter” arising under a law of the federal Parliament. That “matter” is whether Mr Castle has immunity from the processes under the Extradition Act. Mr Castle has not expressly relied on s 39B(1A)(c), but it is not reasonable to expect him, as a self-represented litigant, to know of its existence or application.
62 Accordingly, I treat the matter of Mr Castle’s allegations of “immunity” as an application for judicial review of the decision of the s 19 judge, with the s 21 review concerning a set of different issues, to be decided at a later date. That approach is consistent with the approach I foreshadowed to the parties after the first case management hearing.
63 Counsel for the United States referred the Court to the decision of French J (as his Honour then was) in Cabal v United Mexican States (No 3) [2000] FCA 1204; 186 ALR 188 at [244] where his Honour stated, relevantly:
In addition to the application for review under s 21, judicial review of the magistrate’s order was sought under s 39B(1A) of the Judiciary Act 1903. The grounds upon which that review is sought are largely subsumed in the grounds for review under s 21. Given the scope of that review as a rehearing de novo, nothing in my opinion is to be gained by entering upon any separate consideration of the grounds raised in support of the judicial review.
64 Counsel submitted, and I accept, that his Honour appears to recognise the existence of the Court’s jurisdiction under s 39B to review a decision made under s 19 of the Extradition Act, but in the circumstances in Cabal, considered there was an overlap with the case put by Mr Cabal under s 21 of the Extradition Act. That may or may not be the case with Mr Castle’s arguments, although it is clear that the core aspects of the s 19’s judge’s determination under the statutory framework in s 19 that Mr Castle is eligible for surrender to the United States do not form part of his immunity argument.
65 Accordingly, the Court’s attention has not been drawn to any authority which would preclude it from entertaining Mr Castle’s arguments about immunity in its jurisdiction under s 39B(1A)(c) of the Judiciary Act.
66 For completeness, I note the s 19 judge dealt with these immunity arguments in the context of his task under s 19 of the Extradition Act. There was no suggestion of any separate judicial review application before him, nor could there be, since he was conducting the hearing in an individual capacity not in an exercise of judicial power under Ch III of the Constitution. It may well be, as counsel for the United States submitted, that Mr Castle’s claims for immunity may not fall within the statutory task committed to either a Federal Circuit Court judge or a magistrate under s 19, which is to determine a person’s eligibility for surrender in accordance with s 19(2) of the Act. Nevertheless, the s 19 judge cannot be criticised for dealing with them, as Mr Castle put his immunity claims as his central argument before the s 19 judge, as he has in this Court. In my opinion, by whatever route, the Court should substantively consider Mr Castle’s immunity claim, and that is a more appropriate course in the circumstances than to resolve his allegations by any technical jurisdictional arguments. That was the approach taken by the United States, and in my opinion properly so.
The material before the Court
67 The United States sought to read an affidavit of Lisa Tracey Hemingway dated 19 March 2018. The subject matter of this affidavit was Ms Hemingway’s enquiries of several officials within the United Nations in order to ascertain whether any of those officials were aware of the existence and international status of the “(Office of) International Treasury Control”.
68 Mr Castle sought to adduce as evidence a number of documents, and two documents purporting to be his own affidavits. While these documents appear to have been signed by Mr Castle, and witnessed, they were not in a form capable of constituting an affidavit. In order to put Mr Castle’s own evidence, and his references to additional documentary material, into a more regular form, I required Mr Castle to give sworn evidence at the hearing. He did so for the purposes of identifying the affidavit he had made, deposing to the truth of its contents and deposing to the documents he sought to adduce in evidence. Again, properly, the United States did not object to this course, nor did it make any objections based on exclusionary rules such as the prohibition on hearsay evidence. The United States did, of course, make submissions about the relevance and weight of the material adduced. Mr Castle was not cross-examined. These matters are dealt with in further detail in my written reasons for the ruling I made during the hearing of Mr Castle’s objection to jurisdiction on 10 April 2018 granting leave to Mr Castle to file and rely on certain documents for the purpose of that hearing.
69 In summary, the material Mr Castle sought to put before the Court consisted of:
(1) Correspondence of various dates from “David A Sale”, addressed to office holders and entities in Australia including the s 19 judge and to myself in which I am described as a judge of the Supreme Court of Victoria. These letters deal with matters that include the history and background of the International Treasury Control, Mr Castle’s asserted legal status resulting from his engagement by the International Treasury Control, the processes through which this status could be verified, and the lawfulness of Mr Castle’s extradition and the supporting documents on which the request for extradition is based.
(2) Other documents from “David A Sale” including:
(a) two documents described as “affidavits” of David A Sale dealing with similar matters to the correspondence referred to at [69(1)].
(b) A document described as an “Official Order/Directive” issued by David A Sale to the s 19 judge stating that the s 19 judge should, among things, cease exercising jurisdiction over Mr Castle and Ms Karakasevic and order their release.
(c) A document styled as an “official response” to enquiries regarding how Mr Castle’s status might be verified, addressed to Ms Ann Draper, a lawyer from the United States.
(3) Mr Castle’s own documents, including affidavits dated 9 February 2018 and 6 October 2017, a signed “declaration” dated 28 February 2018 and a letter from Mr Castle to the solicitor representing the United States in this proceeding dated 29 March 2018. These documents deal with similar matters to the documents from Mr David A Sale, which I have described above.
(4) Documents from three other individuals said to have expertise relating to the International Treasury Control. First, a document purporting to be the affidavit of Gordon Douglas Matthews, a person who describes himself as an expert who was prepared to give evidence before the s 19 judge about the International Treasury Control. Second, correspondence from a Mr David Crayford, who is contended to have expertise on the International Treasury Control. Third, correspondence from Michael W. Mehas, said to be a lawyer from the United States, writing to confirm the existence of the International Treasury Control.
(5) A letter from “Queen Adv., Dr Sibonelo Mbikiza of Swaziland” dated 7 August 2017, described in further detail below at paragraph [111].
70 Mr Castle also relied in this proceeding on two documents that were tendered and marked as exhibits before the s 19 judge. These were:
(1) Correspondence from Mr David A Sale dated 15 July 2017 addressed to a number of officer holders and entities, described below at [103].
(2) A document describing in detail the “History and Powers of The International Treasury Controller and marked “© The International Treasury Controller, June 2012”.
71 I have taken all of Mr Castle’s evidence, and Ms Hemingway’s affidavit, as admissible for the purposes of Mr Castle’s judicial review challenge to the s 19 judge’s determination.
72 However, neither Ms Hemingway’s affidavit nor Mr Castle’s material I have described at [69] above, are admissible on the s 21 review, by reason of the prohibition in s 21(6)(d) of the Extradition Act. Mr Castle had, it seems, sought to adduce some of this material before the s 19 judge, but was prevented from doing so. That fact might mean, conceivably, that s 21A(2) of the Extradition Act was engaged. However, I am not persuaded Mr Castle “should have been permitted to adduce” any of this material by the s 19 judge, so the requirements of s 21A(2)(b) are not met. I am not persuaded of this because the provenance of the so-called affidavits and other documents from Mr David A Sale remained unknown, and much of the other evidence, such as the letter purporting to be from Mr Mehas was opinion evidence. The probative value of this material in the form it was submitted, and the fact it was incapable of being tested, meant it should not have been adduced in the s 19 hearing and the s 19 judge was correct to reject it. Therefore, the following material is not admissible on the s 21 review:
(1) Exhibit 5: Letter, 1 September 2017, David A Sale to Judge.
(2) Exhibit 6: Order/Directive, 2 September 2017, David A Sale to Judge.
(3) Exhibit 7: Affidavit, 2 September 2017, David A Sale.
(4) Exhibit 8: Affidavit, 6 October 2017, James Christopher, Castle.
(5) Exhibit 14: Letter from Queen Adv., Dr Sibonelo Mbikiza dated 7 August 2017.
Resolution
73 I accept the submissions of the United States in relation to Mr Castle’s claim for immunity. There is no basis in Australian law for Mr Castle’s claim, and it is Australian law that this Court applies.
74 An important feature of the issue raised by Mr Castle, and that he appeared reluctant to accept, is that he bears the burden of proving the allegations he makes. That burden requires him to adduce probative evidence to prove the allegations of fact on which he seeks to rely, so as to persuade the Court on the balance of probabilities that those allegations of fact should be accepted. He must also identify the aspects of Australian law on which he relies to establish the allegations of immunity that he makes.
75 Responsibly and with great fairness, counsel for the United States identified what she submitted were the possible sources in Australian law for any such immunity claim. I consider each of those below. The International Treasury Control, and Mr Castle, do not fall within any of them. Although he made passing references to Australian legislation, Mr Castle did not seek to anchor his claims in Australian law, instead relying on general assertions about the effect of what he contended to be the content of international law.
76 When I explained that he had a burden of proving the allegations he made, Mr Castle gave three responses. First, he complained that there was no fairness or equity in him having to do that while he was incarcerated, without internet access, without ready telephone access and not being able to travel. Second, and to an extent inconsistently with his first complaint, he contended he had provided ample proof of the status of the International Treasury Control and its leader Mr David A Sale, and by association, of his status within the International Treasury Control and his consequent immunity. Further, and somewhat inconsistently with the previous two responses, he contended that the business of the International Treasury Control, its structure and existence, were subject to such high levels of secrecy that there were only a small number of people who could confirm the existence of the International Treasury Control – predominantly heads of State and, he contended, senior members of government, such as the Minister for Foreign Affairs in the Australian Government.
77 I do not consider there has been any procedural unfairness to Mr Castle in the conduct of this proceeding. There is no doubt the fact of his incarceration has provided challenges in the way he wishes to present material, however those challenges are no different to the challenges faced by any other litigant who is incarcerated. The Court, the correctional authorities, and the federal Attorney-General’s department have gone to some lengths to address those challenges. Mr Castle refused the offer of pro bono legal representation. The matters Mr Castle raised about difficulties in proving what he alleges arises from the nature of what he alleges, and he is not excused from the need to discharge his burden of proof for that reason.
78 I am satisfied on the balance of probabilities that:
(a) Mr Castle is not an “internationally protected person”, within the terms of, or for the purposes of the Crimes (Internationally Protected Persons) Act 1976 (Cth).
(b) Mr Castle is not a person entitled to privileges and immunities under the International Organisations (Privileges and Immunities) Act 1963 (Cth).
(c) Nor is he a person who falls within any regulations made pursuant to s 6(1)(b) of the IOPI Act.
(d) Even on the basis of the additional evidence he has filed in this proceeding, that evidence does not prove that the organisation he contends employs him – the International Treasury Control – has any status with either the United Nations or the Australian government which could conceivably confer any immunity on Mr Castle, outside the two federal statutes to which I have referred (assuming the conferral of such immunity was even possible).
79 All these findings are made without needing to determine whether the claims made by Mr Castle about the International Treasury Control, the role of the person identified as Mr David A Sale and Mr Castle’s own claimed role, have any basis in fact. Although his factual claims, putting it as neutrally as I can, have a distinct air of unreality about them, it is sufficient to dispose of Mr Castle’s immunity claims, and his challenge to the jurisdiction of the s 19 judge and of this Court, by finding that Mr Castle’s claims have no identifiable basis in Australian law which could preclude the application of the processes of the Extradition Act to him.
80 It might be said that Mr Castle’s account of his status within the International Treasury Control, and his account of the International Treasury Control as a top secret global organisation, established by various heads of state, with Mr David A Sale as its leader (a man who has apparently declared himself to be “sovereign”) appears to be an elaborate ruse, or the actions of a person deceived by a “confidence trickster” (as the s 19 judge put it). It is not necessary for the Court to make findings about any of these alternatives, or whether there are other explanations.
The Crimes (Internationally Protected Persons) Act 1976 (Cth)
81 The CIPP Act sets out a self-contained set of criminal offences, that apply to individuals who commit crimes against a person who falls within the definition of “internationally protected person” contained in s 3A of that Act. Persons who fall within such a definition are subject to the additional protections set out in the CIPP Act, which is designed to implement Australia’s obligations under the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, opened for signature on 14 December 1973, 1035 UNTS 167 (entered into force 22 February 1977).
82 The definition of “internationally protected person” is:
3A Extended meaning of internationally protected person
(1) For the purposes of this Act, the definition of internationally protected person in paragraph 1 of article 1 of the Convention has effect as if the reference in that definition to a Head of State included, in relation to Australia, the Governor‑General.
(2) For the purposes of this Act, the definition of internationally protected person in paragraph 1 of article 1 of the Convention has effect as if that definition included, in prescribed circumstances, the following persons:
(a) a prescribed representative or official of Australia;
(b) a prescribed representative or official of a prescribed state other than Australia;
(c) a prescribed official or agent of a prescribed international organisation, where the organisation is of an intergovernmental character;
(d) a prescribed official of a prescribed designated overseas mission;
(e) a member of the family of a person covered by paragraph (a), (b), (c) or (d), where the family member is part of the person’s household.
Note 1: A person may be prescribed by name, by reference to the holding of a specified office or position or by reference to membership of a specified class.
Note 2: A thing may be prescribed by name or by reference to membership of a specified class.
(3) The Governor‑General may make regulations for the purposes of this section.
(4) In this section:
designated overseas mission has the same meaning as in the Overseas Missions (Privileges and Immunities) Act 1995.
official in relation to a designated overseas mission, means:
(a) the head of the mission; or
(b) a member of the staff of the mission.
83 Section 14 of the CIPP Act provides:
14 Certificates by Foreign Affairs Minister
(1) The Foreign Affairs Minister may give a written certificate stating any matter relevant to the question whether a person is, or was at any time or in respect of any period, an internationally protected person.
(2) A certificate given under subsection (1) is admissible in any proceedings as prima facie evidence of the matters stated in the certificate.
84 Mr Castle has not provided any evidence that himself, the International Treasury Control, or the office that he claims that he holds within the International Treasury Control, has been “prescribed” within the meaning of s 3A. Further, he has not provided, nor sought to provide, any certificate of the kind for which s 14 of the CIPP Act provides. Even if he had, as the United States submitted, there would still be the question whether these provisions confer some kind of immunity from the processes under the Extradition Act.
The International Organisations (Privileges and Immunities) Act 1963 (Cth)
85 A second possible source of immunity under Australian law is the International Organisations (Privileges and Immunities) Act 1963 (Cth). This scheme applies to both individuals and organisations. By s 5, regulations made under the IOPI Act can designate an organisation of which Australia is a member, or within which Australia is represented, as one to which the privileges and immunities in the scheme apply. Needless to say, the various regulations made under the IOPI Act do not refer to the International Treasury Control, nor is there any evidence that the International Treasury Control is otherwise within the terms of s 5. Nor is it declared by regulations pursuant to s 5A, a provision which deals with overseas organisations. By s 6, it is possible for regulations made under the IOPI Act to confer a range of immunities and privileges on organisations and persons employed by or accredited with those organisations. These privileges and immunities are set out in the schedules to the IOPI Act.
86 The immunities and privileges in the IOPI Act are wide-ranging. One potentially relevant item is contained in Item 1 of the First Schedule to the Act:
Immunity of the organisation, and of the property and assets of, or in the custody of, or administered by, the organisation, from suit and from other legal process.
87 Reading this broadly, and uninstructed by any authority, it is possible that exposure to extradition under the processes in the Extradition Act would be covered by “other legal processes”.
88 There is also s 6(1)(b)(i). This provision provides that regulations can be made conferring privileges on a person who holds or is performing the duties of an office prescribed by the regulations to be a high office in an international organisation to which the Act applies. Those privileges are set out in Pt 1 of the Second Schedule, being:
The like privileges and immunities (including privileges and immunities in respect of a spouse and children under the age of twenty-one years) as are accorded to a diplomatic agent.
89 The United States referred the Court to the Diplomatic Privileges and Immunities Act 1967 (Cth). Section 7 of that Act provides that, subject to the limitations set out in that section, certain articles of the Vienna Convention on Diplomatic Relations, done on 18 April 1961, 500 UNTS 95 (entered into force on 24 April 1964) have the force of law in Australia. The Vienna Convention is set out in the Schedule to the Diplomatic Privileges and Immunities Act.
90 One of the articles of the Vienna Convention that has the force of law in Australia, subject to s 7 of the Diplomatic Privileges and Immunities Act, is Art 31(1). That article provides that, except in relation to specific types of proceedings (of which none are relevant for present purposes):
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction…
91 The United States drew the Court’s attention to these provisions on the basis that this was a potential a source of immunity for some individuals.
92 However, Art 31(4) of the Vienna Convention provides:
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.
93 In oral argument, some time was spent on considering the potential effect of the provisions of the Diplomatic Privileges and Immunities Act and of Art 31 of the Vienna Convention on the powers of decision-makers under the Extradition Act, and whether these matters were within the scope of what could be considered before the s 19 judge, and by this Court.
94 It is not necessary in the circumstances of this case to determine these questions. That is because, as the United States submitted, Mr Castle has not provided any evidence that he is a person who holds or is performing the duties of an office prescribed by the regulations to be a high office in an international organisation to which the IOPI Act applies.
95 There is a certificate process available under the IOPI Act, as with the CIPP Act. Section 11 provides:
11 Certificates by Minister
(1) The Minister may give a certificate in writing certifying any fact relating to the question whether a person is, or was at any time or in respect of any period, entitled, by virtue of this Act or the regulations, to any privileges or immunities.
(2) In any proceedings, a certificate given under this section is prima facie evidence of the facts certified.
96 Mr Castle has not relied on any such certificate.
97 These matters were, properly, raised by the United States to assist the Court to determine where in Australian Law there may be a source of an immunity of the type claimed by Mr Castle: there is no basis in the evidence, or in the terms of the legislative scheme, to find that the International Treasury Control or Mr Castle have any status under the IOPI Act. Mr Castle accepted as much at hearing, stating that it was “very clear” that there is no such regulation under s 6 of the IOPI in existence.
98 Indeed there is a basis in the evidence to find Mr Castle has no such status. Exhibited to Ms Hemingway’s recent affidavit is a letter from Ms Lyndall Sachs PSM, the Chief of Protocol of the Department of Foreign Affairs and Trade dated 15 March 2018, to the effect that DFAT’s responsibilities include accrediting foreign officials assigned to diplomatic missions and consular posts in Australia, as well as staff of international organisations that have representative offices in Australia. Ms Sachs states:
Protocol Branch has no records relating to an ‘Office of International Treasury Control’ in Australia and is unaware of the existence of an entity bearing this or a similar name. We have not been approached by any organisation seeking accreditation for Mr Castle, and we have never authorised diplomatic visas for him, accredited him, or issued him with an identity card confirming his entitlement to privileges and immunities.
99 I accept the evidence contained in Ms Hemingway’s affidavit. Mr Castle did not seek to contradict it: rather, he contended that the International Treasury Control was too “top secret” an organisation to be within the knowledge of personnel at DFAT.
The weight to be given to Mr Castle’s documentation
100 I am mindful of the comments of Kirby J in Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4; 135 ALR 29 at 31-32, where his Honour remarked;
…it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
101 Nevertheless, I am not prepared to give the documentation provided by Mr Castle any weight. The statements contained in that documentation are not supported by any direct evidence from any of the individuals concerned. For the most part, no evidence has been provided to prove the identity, address, location, position or qualifications of any of the individuals whose names appear on varied documents. In the cases where identification documents are provided, these are not certified copies, and, regardless, copies of such identification is insufficient to establish the authority of the individual in relation to the matters they speak to. This is true for Mr David A Sale, Mr Matthews and Mr Mehas, as well as for Ms Draper who is contended to be the recipient of and conduit for a variety of correspondence which purports to support Mr Castle’s claims. The documentation purports to present a picture of an organisation that sits outside the public, normative international world order and that is, on the evidence, unknown to, and unrecognised by, any established international organisation, or by the Commonwealth of Australia.
102 One of the documents on which Mr Castle relies is a letter stated to be from Mr David A Sale, and dated 15 July 2017. It is addressed to a number of persons and entities, including the Australian Federal Police, the Minister for Immigration (now the Minister for Home Affairs) and this Court. It has the words “Top Secret” in red stamped across the first page. At the top of the letter is an image which appears to be styled as a coat of arms with the letters “ITC” in the centre. Underneath the image are the words “Chartered under the United Nations as a “Sovereign” in its own right”, which appear to refer to the International Treasury Control.
103 The letter describes its contents as “advice” about the status of Mr Castle “and his entire family”. It then sets out an account of the origins of the International Treasury Control and Mr David A Sale as its head, together with various demands about the release of Mr Castle. It is appropriate to set out the letter in its entirety:
Australian Federal Court, 305 Williams St., Melbourne, Australia.
The Australia Federal Police, Melbourne Field Office, Melbourne, Australia,
Minister for Immigration & Border Control, The Rt. Hon. Peter Dutton, PO Box 6022, House of Representatives, Parliament House, Canberra ACT 2600,
In conjunction with:
Melbourne Assessment Centre, 317 Spence Street, West Melbourne, 3003, Victoria, Australia.
Dame Phyllis Frost Centre, Deer Park, 101 -201 Riding Road, Ravenhall, 3029, Victoria, Australia.
Subject: James Christopher Castle – Arrest and Detention following Issuance of a US Federal Court Issued Warrant / Order of Extradition - Case 2:15-cr-00190-GEB Document 115 Filed 03/10/17 Page 1 of 59. Currently held at the aforesaid Melbourne Assessment Centre – Address as above.
Annie Castle – Arrest and Detention following the arrest and detention of her Husband, James Christopher Castle – Refer above Information. Currently held at the Dame Phyllis Frost Centre – Address as above.
Our Ref: KP / ITC / OAS – 001-1/147/Legal – IPPS.
Sirs,
I refer to the above reference subject for which it is necessary for me to advise you of the full legal status of James Christopher Castle and his entire family, temporary residents in Australia; over whom you hold no legal jurisdiction, as is the same situation with the Unites [sic] States of America.
With the unwarranted and unlawful arrest and detention of both James Christopher Castle and his Wife you are hereby advised that you, being the Four (4) addressees hereto, are in full legal breach and non-compliance with International Law and International Treaty Law, International Official Secrets Acts, the Vienna Convention 1961, and the “Sovereign Laws” of the International Treasury Controller.
Furthermore, as a direct result of your actions at the behest of the United States of America, the consequences of same have now created a serious Diplomatic incident and incurred a “Blacklisting” of Australia from receiving any financial assistance, at any time or for any purpose, from the International Treasury Control.
I will continue to explain so as to ensure your full understanding on this issue.
James Christopher Castle is engaged by The International Treasury Controller as Head of Special Developments whereby he is bestowed with and granted, by and under the Powers and Authorities of The International Treasury Controller; International Protected Person Status, International Diplomatic Status, and level 3 – 5 International Immunity and Protectorate, and stands outside the jurisdiction of both Australia and the United States of America.
This document can be legally considered and construed as the absolute verification and confirmation of the aforementioned status of James Christopher Castle by His Excellency, David A. Sale, International Treasury Controller.
Such persons as James Christopher Castle and many others, engaged by The International Treasury Controller are not stated on any Diplomatic list issued by the United Nations on the grounds that our Senior Staff are always subjected to serious threats when they are, or become known, whereby, in protection of the person and his / her family, anonymity is a 100% necessity no matter where in the world they are positioned.
Having experienced serious attacks against Three (3) former Senior Officers of the International Treasury Control, which includes attacks against the former International Treasury Controller (1995 – 2011) which led to his mental demise, you will fully understand and appreciate the absolute need for total anonymity of our staff.
Furthermore, and in full legal support of the above, it is possible to independently verify His Excellency, David A. Sale, as The International Treasury Controller, provided all relevant protocols are adhered to.
Verification of same can only be undertaken by the Prime Minister of Australia, currently the Rt. Hon. Malcolm Turnbull (15th September 2015 – to date), or, failure of which directly to the Australian Head of State, Her Majesty, Queen Elizabeth II.
Please note that the latter person, being Her Majesty, Queen Elizabeth II is the recommended route for verification based upon past experiences whereby the Prime Ministers of specific countries were politically compromised and failed in their duty and legal obligation to their country and people.
Verification of The International Treasury Controller, as signatory hereto, can only be sought by a King, Queen, President or Prime Minister.
We advise you of the following facts:-
His Excellency, David A. Sale, was appointed in May 2012 as The International Treasury Controller, Legal Heir, Owner, and Sole Arbiter of the Global Debt Facility.
This appointment was undertaken by those empowered to appoint, being The Royal Families of the World and G7 Nations of which Her Majesty, Queen Elizabeth II is the Chairman of the Committee of Royal Families and G7 Nations as well as being the person known as M1 and Master Holder of the Assets and Accounts of the Global Debt Facility, its Master Foundation (Foundation Divine) and Master Trust (Heritage International Trust) together with the multiple thousands of Secondary Trusts and Foundations, Sub-Trusts and Foundations, Sub sub-Trusts and Foundations, and Corporate entities; as successor Heir (December 20th 1988) to former M1 and Master Holder Ferdinand Marcos as a descendant of a Chinese Royal Family and former President of the Phillippines (1965 – 1986).
The International Treasury Controller, His Excellency, David A. Sale, on appointment and based upon his relationship to Royalty, and his stature as The International Treasury Controller, was bestowed with “Sovereign” status under United Nations Charter Control No: 10-60847, International Protected Person status with full International Immunity and Protectorate under Full Jacket Level 3 – 5 International Immunity and Protectorate, his own “Sovereign” Judicial status, together with extensive Powers and Authorities, placing him as a “Sovereign” supreme over all other “Sovereign” Nations for the purpose of ensuring that his status and work together with that of The International Treasury Control and its staff, incurred no interference, impediment, unwarranted incursion, unwarranted influence, or otherwise, from any Sovereign Nation, Political or Religious Organistion [sic], International Organisation, Corporate Organisation, or any other person or party.
The “Top Secret” file for His Excellency, David A. Sale, is held within, or by, the US Presidential Office of Budget and Management, The Chairman of the US Congressional Ways and Means Committee, The International Section of the US Treasury, the Headquarters of the United Nations in Geneva and New York, and is assented to and secured by the United States Congress under 3rd to 5th level rules, with Appointment and Protective reaffirmed by the United States Senate under the Great Seal of America No: 632-258894.
Records of the Accounts and Assets of the Global Debt Facility are held within the BIS, the Federal Reserve, the US Treasury, and the Swiss Federal Finance Commission.
Any Instruction, Directive, Order, or similar issued by The International Treasury Control, is INVIOLATE, IMMUTABLE, ABSOLUTE, and UNLIMITED, which must be complied with at all times by the Person(s) / Party(ies) that are subject to same.
Failure to comply with same is a criminal offence under International Law, International Treaty Law, and “Sovereign” Law, which will leave the Offending Person / Party subject to the appropriate action under the formal legal jurisdiction of The International Treasury Controller.
To enlighten you we refer you to the attached hereto, The History and Powers of the International Treasury Controller”.
I would strongly, but respectfully, advise that the Warrant / Order of Extradition, issued by the United States Court against James Christopher Castle, including his Family, be totally rejected on the grounds of being illegally / unlawfully issued against an Internationally Protected Person holding International Diplomatic status whereby it should be clearly stated without any ambiguity or vagueness that the United States Court, through the United States Attorney’s Office, have acted unlawfully and should communicate directly with myself on this issue, as the signatory hereto. Furthermore the American Government should immediately Cease and Desist from all activities in troubling the Australian Government / Authorities in such matters, which are now bringing Australia into serious dispute and Diplomatic embarrassment with the “Sovereign” International Treasury Controller whereby the initial consequences of same have now incurred a “Blacklisting” of Australia and its people.
Furthermore, I also strongly, but respectfully advise, that the Australian Authorities should be honoured and welcoming of such an honorable, dedicated, and honest person as James Christopher Castle despite what the United States claim / state whereby the United States always appear to want to blame others for their own misdemeanors, as can be clearly seen with the Trump – Putin unwarranted claims and the unsubstantiated claims of WMD in Iraq, later proven to be based upon false evidence.
Under normal circumstances, it would be usual for the International Treasury Controller to issue an Official Order upon the Australian Government in respect of this issue concerning the unlawful arrest and detention of James Christopher Castle and his wife.
However, for the time being and knowing full well that the Australian Government and Authorities have been placed into a predicament by the devious use of Extradition Law by the United States, the International Treasury Controller will, for the time being, refrain from such issuance of an Official Order in anticipation of an amicable resolve / solution to this unfortunate problem. However, should a mutual resolve to same not be forthcoming The International Treasury Controller will review his decision whereby same should be considered, along with the consequences that will apply.
You are required to respond to this communication within Thirty (30) Calendar days from the date hereto, whereby any response should be dispatched by secure Email to ….. Chairman@theunoitc.org ……. with the original document of response being sent by Courier Mail to the address at the base of Page 1 of this document.
Approved, Executed and Officiated as of this 15th day of July 2017, by His Excellency, David A. Sale, International Treasury Controller, Chairman, The International Treasury Control, (UN Charter Control No: 10-60847) (International Clearing code: UNRD-ID006197) A “Sovereign” in its own right and Internationally Protected Person
104 Ms Hemingway’s recent affidavit deposes (as I have noted) to her enquiries of officials within the United Nations, concerning their knowledge of the International Treasury Control. Exhibit LTH3 to Ms Hemingway’s affidavit is a Note Verbale from the Office of Legal Affairs of the United Nations to the Permanent Mission of Australia to the United Nations dated 14 March 2018. The Note Verbale states that:
…the Office of Legal Affairs hereby confirms that it is not aware of the existence of an “(Office of) International Treasury Control” within the Organization’s funds or programmes, including, in particular, UNDP, UNHCR, UNRWA, UNICEF, UNFPA, WFP, UNU, UN Women, and UNOPS.
105 Again, Mr Castle did not seek to contradict this evidence directly, rather he contended that, like DFAT, the United Nations officials who communicated with Ms Hemingway were at too low a level to be aware of a “top secret” organisation like the International Treasury Control.
106 The recitation of the role of the International Treasury Control, and its status as a “top secret” international organisation is inherently implausible. I give a few examples, outside the extraordinary text of the letter to which I have just referred. During submissions about the Note Verbale from the United Nations, adduced through Ms Hemingway, Mr Castle embarked on a long explanation about how the signatories to the Note Verbale were insufficiently senior to know of the International Treasury Control. When pressed, he described a series of “screens” (apparently on computers) which would, he claimed, be located within the United Nations, but are only accessible to persons with very high security clearances. He contended information about the International Treasury Control would be accessible through these screens in the form of long “coding”, and he contended such “screens” were accessible by certain individuals within the Australian government. When pressed about who in Australia would have access to these codes, he nominated the Minister for Foreign Affairs and the Prime Minister. He contended that if they were called, they could access the information and verify everything he was saying. I pressed him about this, and as the following exchange demonstrates, it is clear Mr Castle would not, even then, be prepared to accept he could be subject to the extradition process:
HER HONOUR: Somehow, I have a suspicion – and you’re at liberty to dispel it, Mr Castle – that if your invitation was taken up and some evidence in proper form, so far as this court is concerned, was presented, that those inquiries were made, let’s say by the Minister for Foreign Affairs, and let’s say the Minister herself swore an affidavit saying that –
MR CASTLE: I would like to see that affidavit.
HER HONOUR: – there is no such screen –
MR CASTLE: I would like to see that affidavit.
HER HONOUR: – and there is no such – well, just hypothetically –
MR CASTLE: Then – then –
HER HONOUR: Then you would say –
MR CASTLE: There’s certainly going to be an international incident, if that’s the case, because that would not be the case.
HER HONOUR: Well, no, no, but hang on. Before we get to international incidents –MR CASTLE: Now –
HER HONOUR: – then you would say game over, would you, if that evidence came before the court?
MR CASTLE: Yes, I would.
HER HONOUR: You wouldn’t say that I shouldn’t accept the evidence or that it was –
MR CASTLE: If it’s signed by the man and he –
HER HONOUR: It’s a woman. It’s a woman, actually, the Minister for Foreign Affairs.
MR CASTLE: Sorry, you’re absolutely correct. Ms Bishop, yes. My bad. If, in fact, she went ahead and did that, followed the thing, couldn’t find the screens – I would wonder why she couldn’t find the screens, number one, because they’re – they exist. They’re there.
HER HONOUR: Well, that’s what I’m trying to get at, Mr Castle. I’m not, at the moment, persuaded that it would matter what inquiries were made. I’m not sure that your view would be capable of being changed, would it? You say to me, “Oh, well, I would give up”, if that inquiry was made and it came back negative, “It came back against me.” But I’m just testing you about whether you really would.
MR CASTLE: That’s why I qualified the statement, proper person, proper credentials, following proper protocol.
HER HONOUR: All right. All right. Thanks. Thank you for answering that.
107 Mr Castle also claimed that the “USAG Office to the President” would have “ready access” to confirm the existence of the protected status of the International Treasury Control and of himself. The latter acronym I understand to refer to the US Attorney-General’s office. That is the same office bringing the extradition request, as the supporting documents disclose. It is clear from the absence of any references to the International Treasury Control in the supporting documents that the USAG does not consider any such organisation has any role to play in Mr Castle’s susceptibility to extradition.
108 The use by Mr Castle, and by whoever constructed the documentation on which he relies, of descriptions such as “his excellency” and “sovereign” do not advance Mr Castle’s claims at all. Those words have no particular significance unless used in a normative legal and political structure.
109 There were some internal inconsistencies in Mr Castle’s accounts of who has “security clearance” or access to the secret information to confirm the existence and status of the International Treasury Control and of Mr Castle. This is illustrated in the request for review document, where Mr Castle refers to another communication (in evidence), purporting to be from Mr David A Sale, which states:
Verification of same can only be undertaken by the Prime Minister of Australia, currently the Rt Hon. Malcolm Turnbull (15 September 2015 – to date), or, failure of which directly to the Australian Head of State, her Majesty, Queen Elizabeth II. Please Note that the latter person, being Her Majesty, Queen Elizabeth II is the recommended route for verification based upon past experiences whereby the Prime Ministers of specific countries were politically compromised and failed in their duty and legal obligation to their country and people.
Verification of the International Treasury Controller, as signatory hereto, can only be sought by a King, Queen, President, or Prime Minister.
110 Whereas, in submissions to this Court and in his documents, Mr Castle nominated a wider range of people who had access to such information, such as the Foreign Minister, the Governor-General and heads of intelligence agencies.
111 He also produced a letter which purported to be from a Queen of Swaziland, which stated:
HIS EXCELLENCY, DAVID A. SALE
INTERNATIONAL TREASURE [SIC] CONTROLLER,
CHAIRMAN, THE INTERNATIONAL TREASURY CONTROL
P.O. BOX 2, UTTARAKIT ROAD,
CHIANG RAI, 57000
THAILAND
7 August 2017
Your Excellency
The Financial Proposals submitted by Your Excellency for Swaziland placed before me as Queen, on behalf of the Government of Swaziland.
Please be advised that we have now successfully undertaken an official Verification of your Excellency, your International status as Sovereign and International Treasury Controller, Legal Heir and Owner of the Global Debt Facility” whereby Government agrees and assents to pursue your proposals of Financial Assistance from the Global Debt Facility in the interest of Swaziland and its people based upon the application specific content of the definitive ITC brochures delivered to us.
For the purpose of the above, we respectfully request that you accept this document as our official letter of Invitation inviting you to Swaziland for official Meetings and the execution of a Sovereign to Sovereign Bi Lateral Treaty with our Prime Minister together with myself as Queen, any other key Ministers, and Government Officials, including the Central Bank Governor.
We as requested propose three (3) possible dates / period of time, as indicated below, for your proposed visit and respectfully request your review and consideration on same advising us according of the most suitable date/period of time to comply with you own itinerary, or alternatively and mutual consent your suggestion of further dates/period of time which may be suitable for the Government Swaziland
Yours Sincerely,
(signature)
112 This letter is unsupported by any direct evidence and there is no explanation of what connections exist between Swaziland and Mr Castle or the International Treasury Control. Again, the thinking behind the production of such a document appears to be that titles such as “Queen” will hold some sway with the Court or provide evidence of the status of the International Treasury Control. That is not the case.
113 The documents put forward by Mr Castle have more than an air of unreality about them. As I have already noted, there may be a number of explanations for this. Whatever the correct explanation, there is nothing to connect any assertions in these documents with any legitimate claim to immunity from the processes under the Extradition Act which could be countenanced by this Court, or recognised under Australian law.
Conclusion
114 Mr Castle has not proven his claim that this Court has no jurisdiction over him, and that he is immune from the extradition process. On the evidence before the Court, his claim has no foundation in fact or in law and should be dismissed. For clarity, it is appropriate to make a declaration about this Court’s jurisdiction, since it has been challenged.
115 The Court will proceed to determine the substantive aspects of the s 21 review, either on the papers or by a hearing, depending on the submissions made by the parties and the Court’s view of those submissions.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. |
Associate:
