Waters v Secretary of the Attorney-General’s Department (Cth)

1. [1]

   MACFARLAN JA: I agree with Davies J.

2. [2]

   DAVIES J: On 22 January 2019 the applicant was extradited from the Republic of Serbia to Australia in relation to his involvement in the importation of a commercial quantity of cocaine into Australia.

3. [3]

   In Australia he has been indicted on two offences, being conspiracy to import prohibited drugs and conspiracy to possess prohibited drugs.

The subpoena and the motion

1. [4]

   On 24 February 2020, the applicant issued a subpoena addressed to the Attorney-General’s Department of the Commonwealth of Australia seeking four categories of documents. The Attorney-General’s Department advised that it held no documents in answer to category 1, and it produced documents in response to category 2.

2. [5]

   On 14 August 2020 the Secretary of the Department filed a notice of motion seeking to set aside the subpoena as it concerned categories 3 and 4. Those categories were as follows:

3. [6]

   Following the filing and service of the notice of motion, the applicant’s solicitors revised categories 3 and 4 so that they sought production of the following documents:

4. [7]

   The notice of motion was heard by Acting Judge G D Woods QC on 22 January and 16 February 2021. His Honour delivered judgment on 12 March 2021, where he upheld the notice of motion and set aside the disputed categories of the subpoena.

5. [8]

   By an amended notice of appeal, the applicant now seeks leave to appeal against that judgment pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

Chronology of events

1. [9]

   The relevant events are as follows:

2. [10]

   The offences for which extradition was both sought and granted were these (as described in the Extradition Order):

   1. (1)

      Importing commercial quantities of border controlled drugs to Australia from (sic) Article 307.1(1) and 11.2A of the Criminal Code of the Commonwealth;

   2. (2)

      Conspiracy to import commercial quantities of border controlled drugs to Australia from Article 307.1(1) and 11.5(1) of the Criminal Code of the Commonwealth; and

   3. (3)

      Conspiracy of possessing of commercial quantities of illegally imported border controlled drugs from Article 307.5(1) and 11.5(1) of the Criminal Code of the Commonwealth of Australia.

The judgment of the primary judge

1. [11]

   The judgment of the primary judge is relatively short. The significant parts are as follows:

Submissions

1. [12]

   The applicant submitted that there is a legitimate forensic purpose in seeking production of the documents in order to ground an application for a permanent stay of proceedings. The applicant submitted that there were a number of irregularities and errors in the extradition process which will form the basis of the permanent stay application. He identified the following matters which will be relied upon on any stay application.

2. [13]

   First, the applicant alleged that he was unlawfully detained between his arrest on 16 January 2018 and 24 January 2018. Secondly, his detention between 16 January 2018 and 22 January 2019, being in excess of 12 months, was contrary to Article 22 of the LILAC. Thirdly, the applicant’s surrender by Serbia may have been contrary to the principles of dual criminality and speciality by reason of the fact that the two counts on the present indictment allege only conspiracy. Fourthly, no overt acts outside of Serbia are relied upon by the Crown, contrary to Article 16(2) of the LILAC. Fifthly, the applicant was denied procedural fairness at the final Appellate Court hearing because of a change of lawyers, and inadequate preparation time.

3. [14]

   The applicant submitted that the focus of the subpoena is “to ascertain the extent of knowledge, acquiescence or connivance by Australian authorities” of the abovementioned matters, including the provision of information by Australian authorities to Serbian authorities or Courts “that may have been false or misleading”. The applicant acknowledged that he cannot ask Australian courts to sit in judgment on Serbian courts and legal processes.

4. [15]

   The applicant submitted that what was being sought was not a mere fishing expedition. Rather, it is submitted that there is a sufficient circumstantial case or set of circumstances, from which an inference should be drawn, that the documents would demonstrate some impropriety in relation to the Serbian courts being satisfied that the offending occurred outside Serbia. That would be done by comparing what is in those documents with what is contained in the Crown case statement. The information in those documents was provided at some time prior to the final decision of the appellate court in Serbia, and enabled the Serbian court to reach the view that the substantive offence charged satisfied the principle of dual criminality.

5. [16]

   The applicant accepted that he did not have any direct evidence or documents to show connivance, impropriety, or misleading behaviour on the part of the Australian authorities, but submitted that the circumstances were such as to justify an inference that these things might have occurred, and that that was sufficient to show a legitimate forensic purpose for the documents being sought.

6. [17]

   The applicant pointed to what Beech-Jones J said (with the agreement of Beazley JA and Hall J) in Bangaru v R [2012] NSWCCA 204 at [22]:

7. [18]

   The applicant submitted that the primary judge appeared to treat his submissions on the application of the principles of speciality and dual criminality as limited to a potential plea in bar, because his Honour did not consider or decide those issues by reference to the applicant’s submission that they were connected to his contention of potential abuse of process. The applicant submitted that his Honour did not address the issues raised about the potential misapplication of the speciality and dual criminality principles. He submitted that the primary judge did not address, let alone decide, his contention concerning the application of dual criminality between the two Australian conspiracy offences on the one hand, and the appropriate Serbian offence which the applicant asserts carries a maximum penalty of 12 months’ imprisonment.

8. [19]

   The applicant submitted that the primary judge did not address, nor decide, the submissions relating to the applicant’s contention that all of his alleged offending appears to have occurred on Serbian territory, with the result that the extradition was in contravention of article 16(2) of LILAC.

9. [20]

   The applicant submitted, instead, that what the primary judge did was to look only at two of the issues in isolation.

Consideration

1. [21]

   The applicant needs leave under s 5F(3)(a) of the Criminal Appeal Act. In my opinion, the issues raised by the appeal are of sufficient importance, whatever the outcome, and leave should be granted.

2. [22]

   In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beazley JA (with whom James and Kirby JJ agreed) said:

3. [23]

   The applicant submitted that instead of that test, this Court should adopt and apply the “reasonable possibility” test referred to by the Victorian Court of Appeal in Zirilli v The Queen [2021] VSCA 2. That submission was not put to the primary judge. To the extent that the Victorian Court of Appeal concluded that “reasonable possibility” should be treated in the same way as the “on the cards” test, there is no reason to depart from what was said by this Court in Chidgey.

4. [24]

   In any event, the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 recently considered what must be shown to demonstrate a legitimate forensic purpose, at least in relation to civil cases. As a result, the Court modified what was said in Chidgey, although without reference to the decision in Zirilli.

5. [25]

   The principal judgment was given by Bell P who said:

6. [26]

   Both Bell P at [72] and Brereton JA at [91] identified the difference between civil and criminal proceedings, in terms of what must be shown for a legitimate forensic purpose to be established, but both noted the significant developments in disclosure obligations in criminal cases in recent times, which might support a similar approach to the issue in criminal cases to that which is to apply in civil cases.

7. [27]

   The approach now proposed by Bell P in civil cases, (his Honour said at [60] that the language of “tests’ is to be eschewed, because the issue was whether the subpoena involved an abuse of process) had been put forward at an earlier time by Brereton J (as his Honour then was) in A v Z [2007] NSWSC 899; (2007) 212 FLR 255, and adopted by Macfarlan JA (Button and Ierace JJ agreeing) in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [29]. Macfarlan JA also noted in Tropic Asphalts that the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 concluded that, whilst it is necessary that it be shown that “it is likely [that] the documentation [subpoena] will materially assist on an identified issue”, the word “likely” was not used in that formulation in the sense of “more likely than not”.

8. [28]

   In my opinion, whatever approach to demonstrating a legitimate forensic advantage is adopted, and whatever verbiage is used to express that approach, the applicant does not show error in the primary judge’s judgment. The primary judge was prepared to accept that there could, hypothetically, be a legitimate forensic purpose for seeking possible evidence in supporting a proposition of collusion by Australian officials by misleading Serbian authorities. His Honour then proceeded to consider if there was evidence to support that purpose.

9. [29]

   Although the primary judge’s reasons were brief, it is clear that his Honour had regard to the relevant matters that were said to constitute the irregularities put forward by the applicant. That included the period of the applicant’s detention (at [20]), the asserted procedural unfairness in relation to the applicant’s legal representation (at [21), and the principle of double criminality (at [30] and [31]. In addition, the primary judge said that he had read the materials and the judgements of the Serbian courts, and he considered that there had been an adherence to the principle of legality (at [23]).

10. [30]

    His Honour noted that the supplementary information supplied from Australia, which he identified by reference to the Court Book, was sufficient to convince the Serbian High Court and the appellate court that the preconditions for extradition had been met (at [27]). A reading of the judgments of the High Court of 26 November 2018 and the appellate court of 8 January 2019, shows that this information included matters concerned with double criminality, and where the offending occurred to satisfy Article 16(2) of the LILAC.

11. [31]

    The evidence before the primary judge included an affidavit from Sarah Chidgey, the Deputy Secretary of the Attorney-General’s Department. Ms Chidgey gave this evidence, which was not challenged:

12. [32]

    When that evidence is considered with the absence of any evidence which supported the applicant’s submissions, the primary judge was not in error in concluding at paragraphs [22], [23] and [29] of his judgment that there was no evidence that provided any basis for the inference(s) which the applicant sought to have drawn by his Honour.

13. [33]

    Counsel for the applicant at the hearing of the appeal appeared to accept that there was no evidence as such. Rather, what appeared to be suggested was that his Honour erred by not drawing the inferences sought.

14. [34]

    Two matters in particular were relied on.

15. [35]

    First, the applicant pointed to the fact that the Australian authorities were not successful until their third attempt in Serbia to obtain an extradition order. What was said to be inferred from that is that documents produced prior to the third hearing before the High Court in Belgrade must have contained false or misleading information to bring about a different result. However, a reading of the second appellate court judgment of June 2018 shows that the reason the applicant’s appeal was upheld was:

16. [36]

    When the matter was returned to the High Court in Belgrade, that court provided a much more thorough judgment, which detailed the evidence about the relevant matters, including the further evidence put forward at that hearing, and dealt with all of the issues, including the matters particularly identified by the appellate court. It is also apparent from the appellate court’s judgment of 8 January 2019 that it considered that the High Court, on the third occasion, had comprehensively dealt with all of the issues it was required to consider, with the result that the final appeal by the applicant was dismissed.

17. [37]

    Secondly, the applicant relied on the fact that the applicant was initially charged with the substantive offence of importing, and that charge was maintained for more than 12 months before it was dropped after the applicant was returned to Australia. The applicant submitted that, if the substantive offence had not been charged simply to facilitate extradition, it would be expected that the CDPP would have made a decision well before 12 months that there was not enough evidence to proceed with that charge.

18. [38]

    This submission assumes that the double criminality rule is engaged in the applicant’s favour, because only two counts of conspiracy are now charged. It is clear, however, that the two conspiracy charges always formed part of the offences for which extradition was sought.

19. [39]

    Section 42 of the Extradition Act 1988 (Cth) relevantly provides:

20. [40]

    S 10(2) of the Act deals with “conduct”. It provides:

21. [41]

    Accordingly, the focus in s 42, particularly when viewed with s 10(2), is on the proof of conduct, that is, the acts and omissions of the applicant, as was explained in Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [29] and [196], and in Bangaru at [16] and [22]. The same conduct, as set out in the Crown Case Statement, is capable of supporting the conspiracy charges, as it was initially relied on to support the substantive charge. The conduct relied upon in the Serbian courts appears in the judgment of the High Court of 26 November 2018 at pp 13 to 17 of the judgment.

22. [42]

    In relation to the speciality and double criminality issue, the High Court said:

23. [43]

    Ultimately, it was a matter for the Serbian courts to reach a view about whether the speciality and double criminality principle was engaged, and where the offending took place, so that there was compliance with Serbian law to permit extradition. Although the applicant extracts portions of Serbian law in an affidavit read before the primary judge, it is ultimately a matter for the Serbian courts how the written law is applied. In Mokbel v The Queen (2013) 40 VR 625; [2013] VSCA 118 the Victorian Court of Appeal said at [22]:

24. [44]

    The judgment of the High Court of 26 November 2018 sets out in detail how those issues were dealt with, and the appellate court considered that they had been appropriately dealt with by the High Court.

25. [45]

    The applicant submitted that the primary judge only considered the speciality and double criminality principle in relation to the proposed seeking by the applicant of a plea in bar, and not as one of the irregularities which ought to have been considered with the others to lead to the inferences the applicant submitted should be drawn. Although the primary judge first raised this matter at [30] of his judgment, when referring to the foreshadowed plea in bar, a fair reading of what appears at [31] of the judgment shows that his Honour did not confine consideration of that issue to a plea in bar. The primary judge had already concluded at [29] of his judgment that the material did not suggest anything other than diligent pursuit of the Australian officials’ conduct. His Honour then said at [31]:

26. [46]

    It is clear that his Honour perceived that the documents were being sought to provide a basis for suggesting that the extradition amounted to an abuse of process.

27. [47]

    In relation to where the offence took place, the High Court’s judgment said:

28. [48]

    The “description of the factual state of events” referred to above was earlier set out in the judgment of the High Court (at pp 13-17), with all the relevant documents. The detail and the transparency provided in the description of the factual events in the judgment points strongly against the inference the applicant would have the Court draw, that the documents sought in the subpoena would show “knowledge, acquiescence or connivance by the Australian authorities” (as the applicant submits) of the irregularities asserted.

29. [49]

    The applicant placed emphasis on a meeting between himself and a co-offender, Rohan Arnold, in Prague on 15 September 2017 which was mentioned in the Crown Case Statement, and a subsequent acknowledgement by the Commonwealth Director of Public Prosecutions that this meeting was not relied upon as an overt act for the conspiracy charges. The inclusion of that meeting in the material put forward to the Serbian courts was said to be misleading in the light of the later withdrawal of reliance on that act.

30. [50]

    As the judgment of the High Court of 26 November 2018 expresses the issue in relation to Article 16(2) (at [47] above), and as the extradition order itself reads, the focus under that Article appears to be whether the offending was against the Republic of Serbia or its citizens. There is nothing in the detail of the factual material in the judgment which suggests any focus on the particular matter of the Prague meeting. Ultimately, however, it was for the Serbian courts to be satisfied that Article 16(2) has been complied with.

31. [51]

    Many of the criticisms that the applicant makes of the reasoning of the primary judge would be apt if the application before him had been for the permanent stay of the proceedings based on the irregularities suggested. His Honour was not dealing with a stay application, but with whether the applicant had demonstrated a legitimate forensic purpose in issuing the subpoena. His Honour did not need to consider or decide those issues in circumstances where he accepted that, hypothetically, there could be a legitimate forensic purpose to seek possible evidence in support of a proposition that Australian officials colluded in facilitating the extradition by misleading relevant Serbian authorities. In reaching that opinion, his Honour was alive to the issues that the applicant wished to raise on a stay application. However, the enquiry was, whether there was any evidence to suggest that there had been some sort of encouragement of, or collusion or connivance with, the Serbian authorities in the irregularities that were alleged to have occurred.

32. [52]

    To the extent that the applicant submits that pre-conditions to a valid extradition have not been met (e.g. whether the offending took place in Serbia; a proper application of the speciality and double criminality principle), those are matters for the Serbian courts. They were dealt with over the course of three hearings and three appeals. The position with regard to the applicant’s representation is also a matter for the Serbian courts, a matter which the applicant appears to accept by reason of his pending appeal to the Serbian Constitutional Court.

33. [53]

    The applicant is suggesting that there may have been wrongdoing by Australian authorities by reason of the material they placed before the Serbian Courts in relation both to the specialty principle, and in relation to whether acts were committed within Serbia. He is also suggesting that the charging of the substantive offence may have been a contrivance to obtain extradition. He puts forward no evidence in respect of either assertion.

34. [54]

    What the applicant seeks in the present case is a classic example of a “fishing expedition”. In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, Owen J said (at 254):

35. [55]

    The submissions of the applicant make clear that he does not know if there are any fish in the pool. The suggestion that there may be something in the documents sought which is relevant to the matters raised is entirely speculative. In any event, to the extent that the applicant relies on what was said in Bangaru at [22] (see at [17] above), the material the High Court in Belgrade relied upon in its judgment of 26 November 2018 is set out in its judgment.

36. [56]

    In my opinion, a fair reading of the primary judge’s judgment does not demonstrate that his Honour failed properly to apply the test of legitimate forensic purpose to all of the contentions raised; nor did his Honour misapply the “on the cards” test.

37. [57]

    I would dismiss the appeal.

Conclusion

1. [58]

   I propose the following orders:

2. [59]

   BEECH-JONES J: Subject to what follows, I agree with the reasons of Davies J. As noted by his Honour, in the course of argument Counsel for the Applicant referred to the following passage from my judgement in Bangaru v R [2012] NSWCCA 204 at [22] (with whom Beazley JA and Hall J agreed) (“Bangaru”):

3. [60]

   This proposition was derived from a consideration of Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10. It was enunciated in a context where the point raised at first instance and on appeal in Bangaru was that the appellant’s trial on charges under former s 178BA of the Crimes Act 1900 (NSW) was in contravention of the specialty rule enacted in s 42 of the Extradition Act 1988 (Cth) because the corresponding offences for which he was surrendered for extradition by the USA were under former s 178A of the Crimes Act 1900. The above statement simply reflects the effect of s 42 in that where a plea or point is raised under the provision the analysis is not confined to simply comparing the offences in respect of which the person was surrendered by the extraditing country with the offences they stand charged with on their trial in this country. It also extends to comparing “any other offence [ie other than the offences in respect of which they were surrendered] of which the person could be convicted on proof of the conduct constituting [the offences for which they were surrendered]” with the offence(s) they stand charged with on their trial in this country (s 42(a)(i)).

4. [61]

   Although s 42 was referred to, the applicant’s argument before the primary judge, and in this Court, did not assert that the documents sought were necessary to make an application under that provision. Instead, in his submissions in this Court, which reflected his submissions before the primary judge, the applicant contended, inter alia, that his “surrender by Serbia may have been contrary to the principles of dual criminality and speciality” and documents were sought concerning the “knowledge, acquiescence or connivance” by Australian authorities in that circumstance (and others). This submission does not raise any contention under or concerning s 42. Section 42 is a provision directed to the courts of this country and not overseas courts. Section 42 says nothing about the validity of a “surrender” by a foreign court. An application which involves s 42 does not generally involve any inquiry into whether any Australian government official knew, acquiesced or connived in any aspect of the extradition process in a foreign court. Instead, s 42 is engaged once an accused person is arraigned in a court in this country. At that point, the comparison exercise contemplated by the section can be undertaken.

5. [62]

   To the extent that, before the primary judge and in this Court, the applicant raised some issue about whether the applicant’s “surrender by Serbia” was contrary to some principle of dual criminality or specialty then he appears, like his other grounds, to be raising an issue about a principle of Serbian law as applied by the Serbian courts. In substance, his contention was that the processes of the Serbian courts in determining the extradition proceedings were corrupted or distorted and Australian officials were somehow involved in that. He sought documents to support that contention. For the reasons given by Davies J, his actions in doing so were a textbook example of a “fishing expedition”. Whether the applicant needs or is entitled to obtain documents that were presented to the Serbian courts to make an application to the District Court that invokes s 42 of the Extradition Act was not an issue raised by this application and is not a matter I express any opinion on.

6. [63]

   I agree with the orders proposed by Davies J.