The High Court has ruled that the Australian government – diplomats and police mainly – abused legal processes in assisting the deportation of Julian Moti, former Attorney-General of the Solomon Islands, to Brisbane to face age sex tourism charges. Moti is now free to seek an apology and compensation for the politically-inspired misery visited on him for four years. The Moti Farce marked a low point for the Howard/Downer axis in foreign affairs, writes CLA’s CEO, Bill Rowlings.
Moti: Australia on trial..and guilty as hell
By Bill Rowlings, CEO of CLA
Julian Moti has won his case against the Australian Government: they can no longer charge him with child sex “tourism” offences in Vanuatu and New Caledonia in 1997.
“Abuse of (due legal) process” was why his appeal was allowed by the High Court, and why he is now free of charges which are 14 years old.
More than a decade ago, he was found by competent courts to have no case to answer over the same charges. The Australia Government resurrected those charges when it suited their political ends to do so.
Ironically, Moti could only be charged with the offences by Australia because he had not been tried by courts overseas: those overseas courts had found the charges against him so weak, so lacking in substance, that they dismissed them entirely. In other words, they had not even reached the trial stage.
If Moti had been tried and found innocent – which those original judges believed would have been the case – Australian could not have charged him with the retrospective legislation it dragged out of the back of the bottom drawer.
The only more outrageous abuse of legal process in recent years has been the US military commissions of Guantanamo Bay, the kangaroo court process which saw David Hicks jailed in Australia for nine months for committing an offence that wasn’t an offence under US law, military or civil, or an offence under Australian law.
For this nation the Moti fiasco – likewise involving a remote island – demonstrates how extensively those in power will try to bend the law to “get” just one man if he is perceived to stand in their way. It is a sorry story of collaboration between politicians (who have so far avoided their role being examined), police and diplomats from Australia and the Solomons.
The High Court ruling in December 2011 ends the fetid affair where, in CLA’s opinion, the Howard government abused its own laws to try to gag the Attorney-General (AG) of Solomon Islands, Julian Moti, who was a troublemaker in their eyes.
Moti, a lawyer trained in Australia, was highly critical of some operations of RAMSI, the Regional Assistance Mission to the Solomon Islands (RAMSI), particularly over riots in Honiara but also for the political role it was allegedly playing. As the local AG, he threatened to hold a public inquiry in the Solomons into RAMSI, effectively an arm of the Australian Federal Police.
Commentators have said that the Australian Government of John Howard and Foreign Minister Alexander Downer, and the AFP, actively helped foment political discontent in the Solomons, leading to the overthrow in December 2007 of the then Prime Minister, Manasseh Sogavare, who had appointed Moti.
The AFP deny wrongdoing: fortunately, the AFP’s senior liaison officer attached to the High Commission in Honiara, federal agent Peter Bond, was unable to recall the precise words he had uttered at a particularly crucial juncture. A fortuitous AFP minute” came to light indicating that Mr Bond had not spoken with Solomons Members of Parliament about the Moti issue even once in the 14 months leading up to the crucial period around Christmas 2007.
A new Solomons Prime Minister took office on 20 December 2007 after a parliamentary coup. The next day, 21 December, a warrant was issued in Brisbane for Moti’s arrest.
Over Christmas, between 21 and 27 December, there occurred what has since – in evidence before the High Court – proved to be an illegal farce of high incompetence.
Cables and strategy bounced back and forward between the Department of Foreign Affairs in Canberra, the High Commission in Honiara, the AFP in both locations and – undoubtedly, though so far unstated in court – the upper echelons of Executive government of Australia.
In the morning of 27 December, the Australian High Commission provided a travel document to enable Mr Moti to be deported to Australia that day, knowing from its own recorded advice that his deportation that day was illegal because he still had several days left in which to appeal a Solomons deportation order. The Solomons law said he could not be legally deported until the time to appeal had expired.
Moti was eventually charged 11 months later, in November 2008, in the Queensland Supreme Court. There were seven counts of “child sex” offences: the relatively brand-new Australian law said that an Australian citizen who, outside Australia, engaged in sexual intercourse with a person under 16 years committed an offence punishable by imprisonment for 17 years. Four indictment counts alleged conduct in the Republic of Vanuatu; the other three counts alleged conduct in New Caledonia. All related to the one complainant and were alleged to have occurred in 1997.
Here’s what the majority of High Court judges said, formally, about how the Australian Government and its police force abused legal process:
- The central question in this appeal is whether further prosecution of the charges laid in the indictment should be stayed as an abuse of process. That question should be answered “yes”.
- The appellant (Moti) was brought to Australia from Solomon Islands without his consent. Officials of the Solomon Islands Government deported (Moti) from Solomon Islands by putting him on an aircraft bound for Brisbane without power to do so.
- Having regard to the role that Australian officials played in connection with (Moti) being brought to this country, the further prosecution of the charges would be an abuse of process.
- In the present case, (Moti) alleged that his deportation from Solomon Islands was illegal. He alleged that Australian authorities so acted in connection with his deportation that it would be an abuse of process to prosecute the charges preferred against him.
- …the significance that is to be given to what Australian authorities did or did not do in connection with the appellant’s deportation cannot be assessed without first deciding not only whether the deportation was illegal but, if so, why it was illegal.
It is enough to observe three matters.
First, Australian officials (both in Honiara and in Canberra) knew that the senior representative of Australia in Honiara at the time (the Acting High Commissioner) was of opinion that (Moti’s) deportation was not lawful.
Second, the Acting High Commissioner’s opinion was obviously right.
Third, despite the expression of this opinion, and its obviously being right, Australian officials facilitated the unlawful deportation of (Moti) by supplying a travel document relating to him (and travel documents for those who would accompany him) at a time when it was known that the documents would be used to effect the unlawful deportation.
That is, Australian officials supplied the relevant documents in time to be used, with knowledge that they would be used, to deport (Moti) before the time for deporting him had arrived.
In a dissenting judgement, Heydon J considered the appeal should be dismissed on technical legal grounds relating to whether an “assumed rule” – that courts can/must order a permanent stay of prosecution in such cross-country cases if the case was tainted by bureaucratic errors or excesses – would/should apply. He found there was no such “rule”.
All judges ruled against Moti on the second of his two claims for a permanent stay of proceedings: that the Australian Federal Police had paid the complainant and family in such a way that would “bear upon the evidence” the witnesses would give at a trial.
The AFP paid the complainant and her family to “assist with living conditions” while awaiting a trial – $67,500 to the female teenager and more than $81,600 to her father, mother and brother between February 2008 and November 2009.
The High Court described the situation like this:
“Those payments were made following repeated statements by the complainant and her father in December 2007 and January 2008 to the effect that the complainant would not participate any further in the prosecution of the appellant unless she and her family were brought to Australia and given ‘financial protection’.”
Seven judges of the High Court of Australia thought these payments were appropriate. Judge Heydon said:
“Paying witnesses: The payment of money to the complainant and her family does not justify a permanent stay because it does not create incurable unfairness in the forthcoming trial.”
So, it is to be assumed that seven judges of the High Court of Australia approve of police paying witnesses, even when the payments create “unfairness” for an accused person…because the judges assume that police unfairness can be “cured” during a subsequent trial.
To a lay person, this is an extraordinary conclusion and a decision that takes “open slather” for police in Australia, and wherever the AFP are deployed, to potentially ridiculous levels.
Police can already operate with false identities and false names; now they can pay witnesses to get the evidence they want.
FOOTNOTE: Mr Moti has indicated that he will seek an apology from the Australian Government and compensation for the trauma to which he has been illegally subjected.
Moti v The Queen [2011] HCA 50 (7 December 2011
HIGH COURT OF AUSTRALIA
Judges FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL in the majority finding for Moti, Judge Heydon finding against Moti.
JULIAN RONALD MOTI, APPELLANT, AND THE QUEEN, RESPONDENT: B19/2011, on appeal from the Supreme Court of Queensland
1. Appeal allowed.
2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 16 July 2010 and in its place order that the appeal to that Court is dismissed. Representation:
I M Barker QC with P J Doyle for the appellant (instructed by Herdlaw Solicitors)
J V Agius SC with M C Chowdhury for the respondent (instructed by Commonwealth Director of Public Prosecutions)
The Court’s Reasons for Judgment, on which this analysis relies, was subject to formal revision prior to publication in the Commonwealth Law Reports.
ENDS
CLA Civil Liberties Australia A04043
Box 7438 FISHER 2611 Australia
Web: http://www.cla.asn.au/
Email: secretary[at]cla.asn.au
Where there is money there always going to be abuse of processes which all can be cured.
I agree with many of the points made in this article. I would however, suggest that the abuses of process evident in the Mamdouh Habib affair were equally alarming. Also, in the cases of Mohammed Haneef, Zakky Mallah, Joseph Thomas and a number of others serious questions were raised about the conduct of political, judicial, police and security personnel. Many thought the situation would be rectified with the election of a Labor Government. Unfortunately this has not been the case.