Moti v The Queen [2011] HCA 50
Today the High Court held that further prosecution of charges against Mr Julian Moti should be stayed as an abuse of process because Australian officials facilitated his deportation from Solomon Islands to Australia knowing that his deportation was, at that time, unlawful under Solomon Islands law.
Mr Moti was an Australian citizen at all material times. He was Attorney-General of Solomon Islands between September 2006 and December 2007 with a suspension between October 2006 and July 2007.
On 3 November 2008 Mr Moti was charged with seven counts of engaging in sexual intercourse with a person under the age of 16 years whilst outside Australia contrary to s 50BA of the Crimes Act 1914 (Cth). All counts related to one complainant and were alleged to have occurred in 1997. Four counts alleged conduct in the Republic of Vanuatu; the other three counts alleged conduct in New Caledonia.
The complainant and members of her family who might be called to give evidence as prosecution witnesses gave statements to the police. The Commonwealth Director of Public Prosecutions advised the police that there were reasonable prospects of conviction. Australian authorities took steps towards securing Mr Moti’s return to Australia, in particular, by making two requests in 2006 to the Solomon Islands Government for Mr Moti’s extradition which were refused.
Subsequently, between February 2008 and November 2009, the Australian Federal Police made payments of approximately $67,500 to the complainant and $81,600 to her family (“the payments”). The payments followed repeated statements by the complainant and her father to the effect that the complainant would not participate any further in the prosecution of Mr Moti unless she and her family were brought to Australia and given “financial protection”. The payments were said to be made to provide for the “minimal daily needs” of the complainant and her family and, for part of the time, to provide accommodation in Vanuatu. The family were said to be unable to support themselves because the publicity given to the charges against Mr Moti adversely affected their ability to earn income.
On 20 December 2007 there was a change of government in Solomon Islands. On 21 December 2007 a warrant for Mr Moti’s arrest was issued in Brisbane.
On 22 December 2007 Mr Moti applied for an injunction restraining his removal from Solomon Islands. This was refused. The judge noted that there were proper legislative procedures for initiating deportation which governed Mr Moti’s rights and which would give him the opportunity to respond. Specifically, the Solomon Islands Deportation Act provided that a person on whom a deportation order was served could apply to the High Court, within seven days of service of the order, for review of the order and that deportation was only lawful if the person had not applied for review within that time or if, on review, the order was not set aside.
On 22 December 2007 the Solomon Islands cabinet resolved to remove Mr Moti to Australia. On 24 December 2007 a deportation order in respect of Mr Moti was published in the Solomon Islands Gazette. A further application by Mr Moti for orders restraining his removal was dismissed on 24 December 2007, but another application on 25 December 2007 succeeded.
The Acting High Commissioner of Australia in Honiara was of the opinion that Mr Moti had seven days in which to appeal to the High Court before he could lawfully be deported. The Acting High Commissioner conveyed that opinion to her superiors in Canberra. Despite this, her superiors authorised Australian officials in Solomon Islands to supply travel documents relating to Mr Moti knowing that those documents would be used to deport Mr Moti before his deportation was lawful. Mr Moti was removed to Australia on a flight on 27 December 2007.
The primary judge in the Supreme Court of Queensland stayed further prosecution on the ground that the payments were an abuse of process but rejected Mr Moti’s arguments based upon the circumstances of his deportation. The Court of Appeal set aside the stay ordered by the primary judge, holding that there was no abuse of process on either ground. Mr Moti appealed to the High Court by special leave.
The High Court held by majority that further prosecution of the charges would be an abuse of process because of the role that Australian officials played in Mr Moti being deported to Australia. The Court rejected the proposition that the payments were an abuse of process.
Green v The Queen; Quinn v The Queen [2011] HCA 49
On 3 August 2011 the High Court allowed appeals by Shane Darrin Quinn and Brett Andrew Green against sentences imposed upon them by the Court of Criminal Appeal of New South Wales, and made an order which reinstated the sentences originally imposed by the sentencing judge. Today the Court published its reasons for that order.
The appellants pleaded guilty in 2009 to offences contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The appellants took part with others, including Kodie Taylor, in an enterprise for the cultivation of cannabis plants, of not less than the commercial quantity, for supply. Quinn was the principal of the enterprise, and Green and Taylor were both involved at a senior level, although Green was slightly more senior than Taylor.
When the primary sentencing judge sentenced the appellants, he had already sentenced eight other offenders involved in the enterprise, including Taylor, and imposed sentences which had regard to the parity principle as between the appellants and Taylor. Taylor had been sentenced to three years’ imprisonment with a non-parole period of 18 months. Quinn was sentenced to six years’ imprisonment with a non-parole period of three years, and Green was sentenced to four years’ imprisonment with a non-parole period of two years.
The Crown lodged appeals in the Court of Criminal Appeal against the sentences imposed on the appellants, but not against the sentence imposed on Taylor. Under s 5D of the Criminal Appeal Act 1912 (NSW) the primary purpose of appeals against sentences by the Crown is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” The Court of Criminal Appeal, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. By majority, the Court allowed the appeals and imposed sentences of eight years’ imprisonment with a non-parole period of five years for Quinn and five years’ imprisonment with a non-parole period of three years for Green.
The appellants were each granted special leave to appeal to the High Court. The first ground of appeal was that the Court of Criminal Appeal had erred in finding it appropriate to allow the Crown appeal in respect of each appellant, thereby creating a disparity between the appellants’ sentences and the sentence imposed on Taylor. The second ground of appeal related to the finding by the Court of Criminal Appeal, absent any submission from the Crown or prior intimation by that Court, that the sentence imposed on Taylor was manifestly inadequate.
The High Court held by majority that the Court of Criminal Appeal erred in failing to give adequate weight to the purpose of Crown appeals and the importance of the parity principle, and that it also erred in allowing the appeals partly on a basis that was never raised in argument. Although the sentences imposed on the appellants were manifestly inadequate, they were not derisory and entailed a substantial measure of punishment by full-time imprisonment. There were appropriate relativities between the sentences imposed on the appellants and the sentence imposed on Taylor. The intervention of the Court of Criminal Appeal created unacceptable disparity between the new sentences and the sentence that stood unchallenged in respect of Taylor. Having regard to the disparity consequential upon allowing the appeals and the significant delays which occurred in the appellate process, the Court of Criminal Appeal ought to have exercised its discretion to dismiss the appeals.
The High Court further held by majority that the Court of Criminal Appeal was not entitled to allow the appeal on the basis that the sentence imposed upon Taylor was manifestly inadequate. To do so involved a breach of procedural fairness.
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
The High Court today held that a trial judge had been correct not to disqualify himself from hearing a proceeding in the Supreme Court of New South Wales and that the proceeding was not an abuse of the process of the court. The High Court thus allowed the appeal and remitted the matter for further hearing by the Court of Appeal of issues which that Court had not decided.
Michael Wilson & Partners Ltd (“MWP”), the appellant, was a law firm and business consultancy in Kazakhstan. MWP employed a solicitor, Mr Emmott, in effect as a partner, and two of the respondents, Messrs Nicholls and Slater, as lawyers. A few years later, Messrs Emmott, Nicholls and Slater left MWP. MWP claimed that each of them had wrongfully caused it loss by taking clients with them or by assisting or conspiring with others to do so.
Mr Emmott’s contract of employment required arbitration of any dispute with MWP. MWP commenced an arbitration in London against Mr Emmott. MWP claimed, among other things, that Mr Emmott breached a fiduciary duty owed to MWP. MWP then commenced the proceeding in the Supreme Court against the respondents, including Messrs Nicholls and Slater. MWP alleged that they had knowingly assisted Mr Emmott’s breach of fiduciary duty and were liable to MWP on that basis as well as in tort. The claims of loss in both proceedings were substantially the same.
Before the trial, MWP applied, without notice to the respondents, for permission to use, for foreign proceedings and criminal investigations, affidavits of Messrs Nicholls and Slater in the Supreme Court proceeding. The judge granted MWP’s application and six similar applications over approximately a year, relying on MWP’s uncontested affidavit evidence. On each occasion, the application was heard in closed court and orders were made preventing the respondents from knowing, or knowing fully, about MWP’s applications. These confidentiality orders (with some variations) stood for about a year. When, before trial, the confidentiality orders were lifted, the respondents became aware of MWP’s applications and applied to the judge to disqualify himself from hearing the case further. The judge refused their applications and tried the action.
The trial judge gave judgment for MWP against the respondents. The arbitrators in London later delivered an award on Mr Emmott’s liability to MWP. The trial judge and the arbitrators made differing findings about what losses MWP had suffered.
The Court of Appeal held that the trial judge should have disqualified himself and that the Supreme Court proceeding brought by MWP was, in any case, an abuse of process. The High Court overturned the Court of Appeal’s decision.
The ACC is established by s 7(1) of the Act. One of its functions is to investigate matters related to “federally relevant criminal activity”. Section 24A of the Act empowers an examiner appointed by the Governor-General under s 46B of the Act to conduct an examination for the purposes of a “special ACC operation/investigation”. In response to a summons issued under s 28 of the Act by the second respondent, an examiner, the first respondent, Louise Stoddart, attended an examination to give evidence of “federally relevant criminal activity” involving named persons including the first respondent’s husband. Section 30(2)(b) of the Act provides that a person appearing as a witness before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner. Failure to answer questions as required is an offence punishable on conviction by penalties including imprisonment.
Australian Crime Commission v Louise Stoddart & Anor [2011] HCA 47
Today the High Court upheld an appeal by the Australian Crime Commission (“the ACC”) against the decision of the Full Court of the Federal Court of Australia, which had granted a declaration that the Australian Crime Commission Act 2002 (Cth) (“the Act”) had not abrogated the common law privilege against spousal incrimination. The High Court held that the common law does not recognise a privilege against spousal incrimination.
The ACC is established by s 7(1) of the Act. One of its functions is to investigate matters related to “federally relevant criminal activity”. Section 24A of the Act empowers an examiner appointed by the Governor-General under s 46B of the Act to conduct an examination for the purposes of a “special ACC operation/investigation”. In response to a summons issued under s 28 of the Act by the second respondent, an examiner, the first respondent, Louise Stoddart, attended an examination to give evidence of “federally relevant criminal activity” involving named persons including the first respondent’s husband. Section 30(2)(b) of the Act provides that a person appearing as a witness before an examiner shall not refuse or fail to answer a question that he or she is required to answer by the examiner. Failure to answer questions as required is an offence punishable on conviction by penalties including imprisonment.
In the course of answering questions concerning details of her husband’s business, the first respondent claimed to be entitled to “the privilege of spousal incrimination”, meaning she had a right not to give evidence that might incriminate her husband. The Act contains no mention of such a privilege. The examination was adjourned to enable the first respondent to bring proceedings in which the questions whether the claimed privilege existed, and if so whether it continued to have effect, could be determined.
In the Federal Court the primary judge dismissed the first respondent’s application for declaratory and injunctive relief, holding that a spousal privilege existed at common law but that it was abrogated by the Act. On appeal, the Full Court of the Federal Court held by a majority that the common law privilege against spousal incrimination existed and that the Act had not abrogated that privilege, and granted declaratory relief.
The appellant appealed to the High Court, submitting that the Full Court erred in recognising a common law privilege against spousal incrimination, and, in the alternative, that the Full Court should have held that s 30 of the Act dealing with the privilege against self-incrimination abrogated the spousal privilege if it otherwise existed. The High Court held by majority that the claimed privilege against spousal incrimination does not exist at common law. The first respondent was a competent witness to be examined under the Act and was compelled by the provisions of that Act to give evidence. No privilege of the kind claimed could be raised in answer to that obligation. It was therefore not necessary to consider the appellant’s alternative submission.
Hargraves v The Queen; Stoten v The Queen [2011] HCA 44
Today the High Court dismissed appeals by Adam John Hargraves and Daniel Aran Stoten against the decision of the Court of Appeal of the Supreme Court of Queensland, which had upheld each appellant’s conviction for conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Criminal Code (Cth) (“the Code”). The High Court rejected the appellants’ argument that the judge at trial had misdirected the jury by inviting it to assess the appellants’ credibility as witnesses by reference to their interests in self-protection.
Mr Hargraves and Mr Stoten were each charged with one count of conspiracy to defraud the Commonwealth contrary to ss 29D and 86(1) of the Crimes Act 1914 (Cth) (“the Act”) and one count of conspiracy to dishonestly cause a loss to the Commonwealth contrary to s 135.4(3) of the Code. Each appellant held shares in Phone Directories Company Pty Ltd (“PDC”). It was alleged that each of the appellants and others had conspired to defraud the Commonwealth by making false representations about the amount of allowable deductions that were to be made from the assessable income of PDC.
At trial each appellant was convicted of the offence charged in the second count but acquitted on the first count. In the course of summing up, the trial judge gave directions to the jury on a number of subjects related to “the process of assessing evidence and assessing credibility”. On the subject of “Interest” the judge relevantly said: “Does the witness have an interest in the subject matter of the evidence? For example, friendship, self-protection, protection of the witness’s own ego.”
Each appellant appealed to the Court of Appeal against his conviction. The Court of Appeal held that the trial judge had misdirected the jury about how to assess the appellants’ evidence but, applying the proviso in s 668E(1A) of the Criminal Code (Q), dismissed the appeals because there had been no substantial miscarriage of justice.
Each appellant then appealed to the High Court alleging that the Court of Appeal was wrong to conclude that there had been no substantial miscarriage of justice, and further alleging that application of the proviso in the circumstances of the case contravened s 80 of the Constitution, which provides that “[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury”. The prosecution as respondent argued that the trial judge had not misdirected the jury.
The High Court unanimously dismissed the appeals. The High Court considered that the Court of Appeal was wrong to hold that the trial judge had misdirected the jury. Read as a whole, the instructions which the trial judge gave were not such as would deflect the jury from its task of deciding whether the prosecution had proved its case beyond reasonable doubt. The impugned directions given by the trial judge did not occasion a miscarriage of justice on any ground. Accordingly, it was not necessary for the High Court to consider whether the proviso had been applied correctly, and the constitutional issue which the appellants sought to raise was not reached.
Today the High Court granted special leave to appeal but dismissed an appeal by the Commonwealth Director of Public Prosecutions against the decision of the Full Court of the Supreme Court of South Australia, which had set aside the respondent’s convictions under s 135.2(1) of the Criminal Code (Cth) (“the Code”).
Section 135.2(1) of the Code makes it an offence for a person to engage in conduct and, as a result of that conduct, to obtain a financial advantage from a Commonwealth entity, knowing or believing that he or she is not eligible to receive that financial advantage. Section 4.1(2) of the Code relevantly defines “conduct” as including “an omission to perform an act” and “engage in conduct” as including “omit to perform an act”. Section 4.3(a) of the Code provides that an omission to perform an act can only be a physical element of an offence if the law creating the offence makes it so.
The respondent was charged with 17 counts of obtaining a financial advantage contrary to s 135.2(1). Each of the charges against the respondent related to her receipt of part-payments of the Parenting Payment Single (“PPS”) from the Commonwealth entity “Centrelink”. The allegation in each case was that the respondent was not entitled to part-payment of the PPS because she had failed to advise Centrelink of her receipt of payments of commission from her employer. It was not alleged that the respondent was under a duty imposed by a law of the Commonwealth to advise Centrelink of the receipt of those commission payments.
The respondent pleaded guilty before the Magistrates Court of South Australia to each of the charges and was sentenced to 21 months’ imprisonment, subject to the direction that she be released immediately upon entering a bond to be of good behaviour for two years. The respondent unsuccessfully appealed against the severity of the sentence to the Supreme Court of South Australia. The respondent then appealed to the Full Court of the Supreme Court of South Australia, challenging her convictions on the grounds that the counts did not charge offences known to law, and that the counts were deficient in their failure to identify the transaction, act or omission on which liability was said to depend. The Full Court allowed the appeal and set aside the respondent’s convictions.
The Commonwealth Director of Public Prosecutions’ application for special leave to appeal to the High Court was referred to the Full Court, where it was heard as on appeal. The central issue on appeal was whether the omission to perform an act that a person is not under a legal obligation to perform may be a physical element of the offence created by s 135.2(1) of the Code. The Court held by majority that the law creating the offence in s 135.2(1) does not make the omission of an act a physical element of the offence, either expressly or impliedly, within the meaning of s 4.3(a).
AB & AH v State of Western Australia & Anor [2011] HCA 42
Today the High Court upheld appeals by AB and AH against the decisions of the Court of Appeal of the Supreme Court of Western Australia, which had set aside the decision of the State Administrative Tribunal (“the Tribunal”) and refused the appellants’ applications for recognition certificates (“certificates”) of female to male gender reassignment under the Gender Reassignment Act 2000 (WA) (“the Act”).
The Act establishes a Gender Reassignment Board (“the Board”), and provides for the issue of a certificate which is conclusive evidence of the fact that a person has undergone a reassignment procedure and is of the sex stated in the certificate. The functions of the Board are to receive and determine applications for certificates, and to issue certificates in suitable circumstances. Before a person can apply to the Board for a certificate, the person must have undergone a reassignment procedure, as defined in s 3 of the Act.
The appellants, AB and AH, each identify themselves as male. Each applied to the Board for certificates which stated that they were male. Each of the appellants has undergone gender reassignment procedures in the nature of a bilateral mastectomy and testosterone therapy, although they retain some female sexual organs. Section 15(1)(b)(ii) of the Act relevantly provides that the Board must be satisfied that the person applying for a recognition certificate has the “gender characteristics” of the gender to which the person has been reassigned. “Gender characteristics” is defined by s 3 of the Act as “the physical characteristics by virtue of which a person is identified as male or female”.
The Board was satisfied that the appearance of each of the appellants is that of a male person, but determined not to issue a certificate in each case because the appellants retained a female reproductive system. Following a review of the Board’s decisions, the Tribunal set aside the decisions, granted each application for a certificate and directed the Board to issue such a certificate. The Court of Appeal of the Supreme Court of Western Australia allowed the appeals from those decisions and set aside the Tribunal’s decision.
The High Court unanimously upheld the appeals and set aside the orders of the Court of Appeal, with the result that the decision and orders of the Tribunal were reinstated. The focus of the appeals to the High Court was on the meaning of “gender characteristics” in s 15(1)(b)(ii) of the Act, as defined in s 3 of the Act. The Court held that, for the purposes of the Act, the physical characteristics by which a person is identified as male or female are confined to external physical characteristics that are socially recognisable. Social recognition of a person’s gender does not require knowledge of a person’s remnant sexual organs. The requirements of the Act, including s 15(1)(b)(ii), are to be given a fair and liberal interpretation in order that they achieve the Act’s beneficial purposes. The Act contains no warrant for implying further requirements such as potential adverse social consequences or community standards and expectations.
