Johnson v Honourable Daryl Williams

1 The appellant, with Michael John Fuller and Joseph Patrick Cummings, has been charged with one count of conspiracy to cheat and defraud, thirteen counts of aiding and abetting the fraudulent application of company property and fifteen counts of making improper use of his position as an officer of the company to either gain an advantage for another or cause detriment to the company. In essence the allegation is that the appellant with Fuller and Cummings defrauded Claremont Petroleum N.L. and Beach Petroleum N.L. by inducing them to purchase from companies controlled by the appellant shares in Barbank Oilfields at a gross overvalue. The offences are alleged to have occurred in 1988 and 1989. The charges were laid by information in 1993 and 1994. 2 The appellant lives in England. He had been extradited from Australia to face charges of fraud. The appellant was acquitted of a number of those charges, and the other charges against him were dismissed. Immediately after his acquittal the then Minister of State for Justice made a request on behalf of the Commonwealth that the appellant be returned to Australia to face the charges laid against him in this country. The extradition request was made under s 7(5) of the Extradition Act 1989 (UK). The appellant was arrested under a provisional warrant issued under s 8(1)(b) of the 1989 Act and brought before a metropolitan magistrate who committed the appellant on bail to await the decision of the Home Secretary as to his return. The committal order only related to some of the charges that had been laid against the appellant. The Home Secretary ordered that the appellant be returned to Australia, by warrant issued under s 12 of the 1989 Act. 3 Proceedings were taken in the English courts to set aside the decision of the metropolitan magistrate to commit the appellant and to set aside the decision of the Home Secretary to return the appellant to Australia. To date none of them has been successful. The appellant has also taken proceedings in Australia to prevent his extradition. They have suffered the same fate as the English actions. 4 The charges that have been brought against the appellant and his co-accused raise complex issues of fact and difficult questions of law. The trial is estimated to last between six to nine months. The co-accused, Fuller and Cummings, exploited these complications by successfully obtaining a stay of the prosecution against them upon the principles established by the High Court in Dietrich v The Queen (1992) 177 CLR 292. They persuaded the Full Court of the Supreme Court of South Australia that, because they could not afford to engage counsel, they would be deprived of a fair hearing and hence the criminal proceedings against them were stayed: R v Fuller & Cummings (1997) 69 SASR 251. The precise order that the Full Court made was: "That the orders made in the proceedings on the information against each [of Fuller and Cummings] be stayed until such further time as - a. proper and adequate legal representation for the reasonable duration of the trial be provided to each [of them]; and b. proper and adequate funds are provided to [Fuller and Cummings] to enable them to secure the services of such professional and/or expert assistance and witnesses as they may reasonably require to mount proper defences to the prosecution case against them." Up to this point Fuller and Cummings have not been provided with legal assistance or with money to obtain that assistance. It is not clear whether such assistance or money will ever be provided to them. 5 The stay order prompted the appellant's solicitors to ask the Attorney-General of the Commonwealth to withdraw the request for extradition. Although the Minister for Justice made the original request it is accepted that it was appropriate for the matter to be directed to the Attorney-General. The solicitors put forward two reasons why the request for extradition should be withdrawn. First, it was said that if the appellant was returned to Australia it was the intention of the Director of Public Prosecutions ("DPP") to prosecute all charges that had been laid against the appellant and not only those in respect of which the metropolitan magistrate had made the committal order. Second, it was put that it was not likely that the appellant would be tried on any of the charges. The solicitors pointed out that it is doubtful that Fuller and Cummings would be granted legal aid and asserted that the DPP would not proceed against the appellant at a separate trial. Even if the DPP would proceed against the appellant alone, it was said that the appellant was indigent and would be entitled to a stay of the proceedings against him for the same reason that a stay had been granted on the application of Fuller and Cummings. 6 The Attorney-General resolved to consider the matter. It seems that the view was taken that he was under an obligation to do so. We will proceed on that basis as well, but as the point was not argued we should not be taken as expressing any opinion on it. The Attorney needed information upon which to base his decision. In that regard officers in the Attorney's department made enquiries to ascertain whether, if the appellant was surrendered, he would be prosecuted by the DPP if the stay on proceedings against Fuller and Cummings remained in place. There is an exchange of correspondence on this subject between the Attorney-General's Department and the office of the DPP. Rachel McCallum was the officer handling the matter in the Attorney-General's Department and Graeme Davidson, was the assistant director in commercial prosecutions acting on behalf of the DPP. This is what passed between Ms McCallum and Mr Davidson on 1 and 2 February 1999: "Graeme, Re Mr Johnson's submission that the AG should withdraw the extradition request… Could you please confirm that the CDPP does in fact intend to attempt to prosecute Mr Johnson if he is extradited, notwithstanding that the Fuller and Cummings prosecution has been stayed. We just need to be clear in our advice to the AG that the stay against his co-accused will not mean that the CDPP will decide that the prosecution against Mr Johnson should not even proceed. I am not concerned here about the details of the final charges. I presume that, the [sic] whatever the final charges, they will conform with Australia's speciality undertaking to the UK. Thanks Rachel Rachel The CDPP intends to pursue the prosecution of all three men and we have anticipated that the issue of legal aid will ultimately be resolved which will allow the stay against Fuller and Cummings to be lifted. They are all charged with serious offences which relate to a total of about $27 million of shareholders funds and which on conviction would warrant substantial terms of imprisonment. Regards Graeme" 7 The topic was taken up again on 19 February 1999. Two communications passed between Ms McCallum and Mr Davidson on that day. They read: "Graeme Re your message [of 2 February 1999], I would be grateful if you could confirm that a continuation of the stay against the prosecution of Fuller and Cummings would not alter the intention of the CDPP to bring Mr Johnson to trial - even if that course of action would mean that a joint trial was not possible. thanks Rachel Rachel As previously indicated the CDPP intends to prosecute all three accused in a joint trial. If for any reason a joint trial was not possible, that may affect the strength of the case against an accused facing trial as an individual. The case has been approached as one against three joint accused and as one where the legal aid issue would be ultimately resolved. We have not appraised the matter on the basis that two of the accused may not be prosecuted. If legal aid is unlikely to be provided for Fuller and Cummings would you please let us know as soon as possible. Regards Graeme" 8 On the basis of this and other information departmental officers then prepared a briefing note for the consideration of the Attorney-General. It is a four page document, excluding attachments. The briefing note describes as the issue for the Attorney-General's consideration the "[s]ubmission that Australia's request to the United Kingdom for Johnson's extradition should be withdrawn." The briefing note provides details of the attempts to have the appellant returned to Australia to face charges. It explains that the appellant's solicitors had submitted that the extradition request should be withdrawn for two reasons viz: "(i) the UK Home Secretary's surrender warrant does not surrender Mr Johnson for the offences upon which the DPP intends to prosecute him if he is returned to Australia. That would preclude the DPP from prosecuting Johnson given the speciality provision (section 42) of the Extradition Act 1988; and (ii) Johnson will not be prosecuted in Australia as he is likely to be refused legal aid funding, and given his indigence, he will obtain a stay of prosecution for the same reasons as his co-accuseds, Messrs Fuller and Cummings did (the Dietrich principle)." Correspondence that had been received from the appellant's solicitors is referred to and copies attached to the briefing note. Beneath the heading "Recommended Course of Action" the following appears: "8. Our analysis and concluded view on the relevant issues is at Attachment E. 9. As set out at Attachment E, it is our view that there is no basis for making a decision to withdraw the extradition request because: · the UK Surrender warrant does not conflict with the speciality rule in Australian extradition law; and · the possibility that the prosecution against Johnson will be stayed in South Australia under the Dietrich principle does not warrant the withdrawal of the request. 10. We recommend therefore that you decide not to withdraw the extradition request." (emphasis in original) 9 The briefing note records that it was originated by a Senior Legal Officer in the department, signed by the (Acting) Assistant Secretary, International Branch and endorsed by the (Acting) First Assistant Secretary and Secretary of the department; a formidable array of departmental staff. 10 It is necessary to refer to the analysis contained in Attachment E. That document is divided into sections. It begins with an introduction summarising the two grounds that are said to constitute good reason for withdrawing the extradition request. Then there is a detailed analysis of the first ground. The stated conclusion is that it did not amount to a good reason to withdraw the extradition request. That is followed by a discussion of the second ground. The principles established by Dietrich's case are summarised. The possible effect of the case on the appellant's position is discussed. The following opinion is expressed: "18. If Johnson is returned to Australia, applies for legal aid, and is refused, there is clearly some possibility that a trial judge may grant a stay of the prosecution based on the Dietrich principle. However, it can not be said, as Johnson's solicitors assert, that there is no likelihood of him ever being brought to trial. That is speculation, and can only be conclusively determined in proceedings before the Court. Moreover, even if Johnson was granted a Dietrich stay, the prosecution would only be stayed until such time as legal representation can be secured (ie it would not be expressed to be a permanent stay)." (emphasis in original) This is immediately followed by the authors "Conclusion on Stay of Prosecution". This part of the document is critical and should be set out in full. "19. Contrary to the assertions made by Johnson, it simply cannot be said that 'there is no likelihood that Johnson will ever be brought to trial' should he be returned to Australia. 20. We would not recommend the making or the maintaining of an extradition request if it was apparent that the relevant Australian prosecuting authority did not intend to proceed against the fugitive upon his or her return, or that the authorities could not proceed against the fugitive in respect of the relevant offences. In such circumstances, the extradition request may be regarded as lacking a proper purpose. In this case, the DPP has confirmed that it still intends to prosecute Johnson if he is extradited to Australia. In all of the circumstances, there is no clear legal impediment against the prosecution proceeding, and there is at least some prospect of Johnson being brought to trial. Therefore, we consider that the extradition request should not be withdrawn." (emphasis in original) 11 The Attorney-General considered the briefing note and adopted the recommendation that the extradition request should not be withdrawn. The Attorney-General made his decision on 13 April 1999. It is not clear whether the Attorney-General read every attachment to the briefing note before he reached his decision. It may be inferred that he read all the attachments other than those that were described in the briefing note as "not rais(ing) any relevant matters not already canvassed". If this be true then the Attorney-General did not read all the letters that had been received from the appellant's solicitors. However, for reasons that will become apparent, it is of no consequence whether the Attorney-General read all of the attachments or did not read any of them. 12 This then brings us to the events that give rise to the appeal. The appellant applied for an order to quash the decision of the Attorney-General not to withdraw the request for extradition. Various grounds were relied upon. It is sufficient merely to summarise them. They fall into two broad groups. First it was asserted that the Attorney-General had acted unreasonably in the Wednesbury sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) in failing to consider whether, or failing to conclude that, the prosecution against the appellant would be stayed under the Dietrich principle. The second general area of complaint was the alleged failure by the Attorney-General to take account of, or to make proper enquiries into, whether the DPP intended to proceed with the prosecution against the appellant if the stay of proceedings against Fuller and Cummings was not lifted. 13 It appears to have been conceded that the decision of the Attorney-General not to withdraw the request for extradition was capable of review by a court. As the point was not argued we express no opinion on whether the concession was rightly made. We will proceed on the assumption that it was. 14 The trial judge rejected the first limb of the attack essentially for two reasons. First, his Honour held that even if the appellant was impecunious as was alleged that did not mean that an application for a stay of the criminal prosecution against him based on the principles established in Dietrich would be successful. Second, the trial judge held that dependent upon the circumstances the appellant might be denied a stay, even though the criminal court might conclude that the appellant could not afford legal representations through no fault of his own. 15 As regards the second general ground of attack, the trial judge found that the Attorney-General had been informed of all that was necessary concerning the possibility of the prosecution continuing against the appellant alone. He formed the opinion that the contents of Attachment E, in particular what was said in para 20, "was a balanced statement that fairly summarised the position". The trial judge also found that the contents of the documents submitted to the Attorney-General contained adequate information with respect to the circumstances concerning Fuller and Cummings to enable the Attorney-General to make a proper decision on whether to withdraw the request for extradition. 16 These findings were sufficient for the trial judge to order that the proceeding be dismissed. However, his Honour went further. He said that even if he had come to the conclusion that the Attorney-General had failed to properly consider the matter, he would have exercised his discretion not to interfere with the decision. In this connection there were two factors that the trial judge relied upon. First, he found that there was "a delay in the institution of [the] proceedings". His Honour pointed out that the South Australian Court of Criminal Appeal had handed down its decision to stay the prosecution of Fuller and Cummings on 29 August 1997. He noted that the appellant had not taken any step to have the Attorney-General consider the matter for twelve months. Although his Honour said that the appellant was entitled to consider his position for some period, he concluded that there was an unexplained delay of four to six months during which time no action was taken. His Honour referred to the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. In that case Wilcox J considered an application for an extension of time within which to institute proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Wilcox J said (at 348): "It is a pre-condition to the exercise of discretion in [the applicant's] favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time." After citing this passage the trial judge said: "In my opinion, those principles apply to the present application. The unexplained delay in bringing this application is sufficient to dismiss it." 17 The second discretionary ground relied upon is the undesirability of fragmenting the criminal process. His Honour referred to the generally accepted proposition that a court should be reluctant to intervene at an intermediate stage of an extradition process in the absence of exceptional circumstances. His Honour was of the opinion that the appellant would lose none of his rights to argue the matters that he wished to raise in the proceeding and that was a reason why, as a matter of discretion, the decision of the Attorney-General should not be quashed. 18 On appeal the appellant limited his attack on the findings of the trial judge to one point, apart from criticising the discretionary aspects of the decision. The appellant's case can be summarised as a series of propositions. First, the position taken by the DPP was that he wished to prosecute the three accused - the appellant, Fuller and Cummings - at one trial. Second, the DPP had not considered whether he would prosecute the appellant alone if the stay on proceedings against Fuller and Cummings was not lifted. Third, the statement in Attachment E that "the DPP has confirmed that it still intends to prosecute [the appellant] if he is extradited to Australia" is either false or misleading. Reasonably understood, that statement meant that the DPP did intend to proceed with the prosecution against the appellant even if he could not proceed against Fuller and Cummings. Fourth, if the Attorney-General read Attachment E he would have been misled by it. Alternatively, if the Attorney-General had not read Attachment E he had failed to have regard to a relevant matter namely that the DPP was intending to prosecute the three co-accused at one trial, because that fact had not otherwise been brought to his attention. 19 The Attorney-General did not contest the first and second propositions. In any event, they are established by the correspondence to which we have referred. Nor did the Attorney-General seriously dispute the fourth proposition. It was conceded, quite fairly we should say, that if the Attorney-General was misled or had not had drawn to his attention the position taken by the DPP, then his decision was liable to be set aside, subject to discretionary considerations; see Leung v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 at 90. The real contest on this appeal concerns the third proposition. The Attorney-General contends that the trial judge was correct in holding that Attachment E represented a fair and accurate summary of the position taken by the DPP up to that point. That being the case, so the argument goes, Attachment E was not misleading and if it was not read by the Attorney-General it could not be said that he failed to have regard to relevant material. 20 It is convenient to turn immediately to consider the meaning that would have been conveyed to the Attorney-General by para 20 of Attachment E. In our view, which is contrary to that of the trial judge, the statement that "the DPP has confirmed that it still intends to prosecute [the appellant] if he is extradited to Australia", in the context of the paragraph as a whole and in the context of the immediately preceding paragraphs, carries only one meaning: namely that the DPP had confirmed that he will prosecute the appellant alone if he could not proceed against Fuller and Cummings. That statement is either false or misleading. No decision had been taken by the DPP as regards whether the appellant would alone be prosecuted. As the communications from his office made clear, the DPP had not even considered whether he would prosecute the appellant at a separate trial. In the result, the Attorney-General's decision is liable to be set aside, because it was procured by a false or misleading statement if the Attorney-General had read Attachment E. It is liable to be set aside for having failed to take account of relevant information if he had not read the attachment. 21 The Attorney-General did submit that, at worst, the statement in para 20 was ambiguous in the sense that it had two meanings. The first is that which we have found it conveyed. The second meaning is that the DPP intended to prosecute the appellant, Cummings and Fuller at a joint trial. Then it is submitted that these two meanings would have been apparent to the Attorney-General when he made his decision. Accordingly, so the argument goes, his decision not to withdraw the extradition request, being based on both possible meanings, is not invalid. 22 We do not accept the premise upon which this submission is based. That is, we do not agree that the Attorney-General would have discerned two meanings from para 20. In the first place, we do not accept that there is any ambiguity in what was said to the Attorney-General. In the second place, having regard to the grounds that were relied upon to withdraw the extradition request, if it had been apparent to the Attorney-General that there was some ambiguity in the information that he was provided, we do not doubt that the Attorney-General would have sought clarification. That he did not do so is itself sufficient evidence to conclude that the perceived ambiguity was not apparent to the Attorney-General. 23 It remains for us to consider the discretionary reasons for the refusal of relief. In relation to these grounds - delay and fragmentation - it is not sufficient that we be persuaded that a different result should have been reached. To reverse the decision of the trial judge it must be shown that he has fallen into error. 24 As regards delay, we are satisfied that the trial judge did err in principle. The relief the appellant sought was discretionary in nature. One matter that is properly to be taken into account in proceedings to quash or have declared invalid an administrative decision is whether there has been delay in bringing the proceeding. Courts quite properly take the view that there is a need for a speedy determination of the validity of an administrative decision. The interests of good administration and of third parties are at stake: O'Reilly v Mackman [1983] 2 AC 237 at 284; Caswell v Dairy Produce Quota Tribunal for England & Wales [1990] 2 AC 738. Unreasonable or unaccounted for delay cannot be tolerated. 25 The timely action that is required is the commencement of proceedings for or in the nature of judicial review. In this case there was no relevant delay. Immediately following the decision of the Attorney-General the appellant successfully applied to amend an existing proceeding to mount his challenge to the decision. Although the trial judge referred to a delay in the institution of proceedings, in reality what his Honour had in mind was the appellant's delay in approaching the Attorney-General with the request that the extradition request be withdrawn. It was this approach that the trial judge considered should have been made earlier. The trial judge may well be correct. There appears to be no reason why the appellant did not make his request of the Attorney-General earlier than he did. However, this failure is not to be treated in the same way as a delay in the commencement of an application for judicial review once the impugned decision has been made. We are of the opinion that a delay in asking that an administrative decision be taken will not, generally speaking, bear upon whether relief should be withheld if it turns out that the decision was made in error. That type of delay might be relevant to the question whether the decision-maker was under an obligation to consider the request, but that is a different matter. 26 The final matter then is the fragmentation point. The courts have repeatedly indicated that the fragmentation of a criminal trial, or the criminal process, by way of appeal or judicial review, is highly undesirable and will only be allowed in exceptional circumstances. The cases are well known and need not be cited. The rule is most rigorously applied in relation to a matter that can be determined in the criminal proceeding itself. It has a less secure foundation when the point sought to be raised is dehors the criminal process. That is the position here. If the appellant is extradited, he will face whatever criminal proceedings will be brought against him. The validity of his extradition will not be capable of being challenged, for all practical purposes. If the criminal proceedings are stayed, he may be able to return to England. On the other hand, if they proceed, the fact that the Attorney-General made an incorrect decision will be irrelevant. 27 In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386, a decision to which the trial judge referred, the Full Court pointed out that the courts should not intervene at an intermediate stage of the extradition process in the absence of exceptional circumstances. The Court said that exceptional circumstances would include a case where what was required was the determination of a discrete point of law on uncontested facts. In Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 188 the Full Court went even further and suggested that in such a case "there is much to be said in favour of the courts, in the exercise of their discretion, hearing and determining (the) claim". This seems to us to be just such a case. Nevertheless, the trial judge said that the fragmentation principle should be applied because the appellant would retain "all rights of objection and challenge" in the criminal trial. As we have said, this is by no means self-evident. If the decision of the Attorney-General is not set aside, whether for substantive or discretionary reasons, the position may well be that that decision is later incapable of challenge. In that event, the point will be lost to the appellant. The adverse consequences to the appellant outweigh the policy considerations that lie behind the non-fragmentation rule. In any event, having regard to the cases to which we have just referred, we are of the opinion that the trial judge erred in law by placing too high an onus on a litigant seeking to avoid the fragmentation point. 28 In the result, we would allow the appeal, set aside the orders made by the trial judge and in lieu thereof order that a writ of certiorari issue quashing the decision of the Attorney-General. The appellant should have his costs of the appeal and of the hearing below. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.