The Evidence
21 Two affidavits of the applicant were read in the application before me. The first dated 14 March 2002 (and filed 18 March 2002) deposed to a number of matters in connection with, and underlying, his criminal charges. He said that he spoke by telephone in 1997 to a number of people, including one of his erstwhile co-accuseds, a Mr Reardon, about importing recycled paper into Australia. One of the conversations which the applicant had, he says, was with Mr Purchas, an officer of the NCA. The affidavit in substance asserts that he was only involved in discussing the importation of recycled paper and the question of drugs did not come up in any conversation with him. Another affidavit dated and filed 5 March 2002 was to similar effect. Neither affidavit was directed in any coherent way to the particulars under [11] of the statement of claim. The affidavits reiterated the contents of the affidavit accompanying the application. There was no of elucidation of the phrase "based on the applicant's race" used in the particulars to [11] of the statement of claim. There was no evidence put forward about this, beyond the fact of the applicant's nationality and the nature of the crime.
22 The applicant makes grave allegations. If they occurred they are of the utmost seriousness. However, unless they raise a matter under a federal law they do not give this Court jurisdiction. It is alleged, however, that these acts were done "based on the applicant's race". For the purposes of subs 9(2) of the RD Act, it was alleged in submissions that these acts (false accusation, evidence tampering and perjury) involved a distinction or preference based on national origin or race with the purpose or effect of denying the applicant the enjoyment of his liberty. It was put in argument that the applicant wished to allege that these wrongs were done to him because he was Colombian, so as to add, it was said, verisimilitude to false charges about cocaine. It is appropriate to set out a passage taken from one of the applicant's affidavits in order to gauge the nature and width of the allegations made by the applicant. (There are various typographical errors. All appear in the original.)
The Facts are
· I was approached with the request if I knew any person who could speak English and Spanish in Chile, South America to assist in business that Mr Purchas was going to conduct in Chile Soil and with the understanding he will invest or buy in therecycle paper.
· That memberof the National Crime Authority Mr Michael Ralph Purchas and Mr Paul Fehon created and financed this crime, during this operation they portrayed themselves to be member of the Jewish Community, being the financial and mastermind of this drug deal.
· I repudiate the facts that Mr Michael Ralph Purchas were authorized by high authorities in the government to hide behind the masquerade of being a member of the Jewish Community, this created animosity between the different ethic groups in Australiacommunities. And is in breached of the discrimination Act on Religious grounds.
· The fact that the National crime authority is creating and financing drugs with assistance of police informant is in fact a breachedof many of the clause or rules from the International Covenant on Civil and Political Rights, the United Nations treaty on Narcotic & subtropics substance, the breached of the International code of conduct and failure to apply through the appropriate diplomatic channel of The Mutual Assistance treaty which Australian is a party signed to them.
· The event developed during this operation are far beyond the alleged entrapment legal arguments, due to the manner, initiative, their illegal and corrupt conduct and deep involvement of the law enforcement members on this and other operation.
· The lack of the integrity of the Judicial judges that condoning law enforcement corrupt and illegal conduct to justify their position instead of severely stay the case or take a legal remedy as legislative power had been entrusted them, to sensor this activities. The judge in fact assist this office to committed perjury through the proceeding an in due so she or he is in breached of the International Covenant on Civil and Political Rights.
· Mr Purchas breached and mislead me in relation to the recycle paper and the National Crime Authority ignored and breached a verbal consent, between myself and formalNational Crime Authority Mr Gordon Elliot, for the fact that member of it organization were the bosses and financiers of this illegal enterprisesas the evidences shows.
23 Mr Bonnici swore an affidavit dated and filed 22 January 2002. It dealt with a number of matters, including the procedural history of the applicant's conviction and appeal. However, importantly, Mr Bonnici said the following about the allegations of the applicant (the reference to the affidavit of the applicant dated 3 May 2001 can be read as a reference to the two affidavits referred to above in the light of their equivalence as to content):
I have read Mr Michaels' application to this Court under the Human Rights and Equal Opportunity Commission Act 1986 dated 15 May 2001 alleging unlawful discrimination. I have also read the affidavit Mr Michaels swore in support of that application on 3 May 2001. The issues raised by Mr Michaels in those documents are the same issues he raised at his trial in the District Court of New South Wales and his appeal to the New South Wales Court of Criminal Appeal against his conviction and sentence on the charge to which I have referred at paragraph 4 and elsewhere in this my affidavit, namely:
(a) That National Crime Authority investigators created and maintained an artificial conspiracy, with the assistance of other persons, and manipulated him (Mr Michaels) into becoming involved in it;
(b) That he (Mr Michaels) was involved in the recycled paper business and that he had only spoken to National Crime Authority Investigator Purchas about that business during their various communications and not cocaine as alleged against him;
(c) That National Crime Authority investigators tampered with evidence; and
(d) That National Crime Authority misled the Court and lied to the Court during his trial.
[emphasis added]
24 Mr Bonnici also threw light on material which had been handed up in a directions hearing. On 14 December 2001 a document was handed to me which remains on the Court file. Mr Bonnici at [9] deposed as follows in connection with that document:
On 14 December 2001, at a directions hearing of this Court before Justice Allsop, Mr Michaels produced a list of witnesses he proposed to call in relation to the application. A copy of that list entitled "List of names of person to be call for the case of Edgar Michaels v The Commonwealth of Australia" is annexed to this affidavit and marked with the letter "A" (with a name blacked out on the first page of that document in compliance with a non-publication order made by the District Court of New South Wales during the trial of Mr Michaels and his co-accused). That list contains persons who (according to National Crime Authority, Commonwealth Director of Public Prosecutions and Court records) were either co-accused in relation to the conspiracy or witnesses at Mr Michaels' trial on that charge. Mr Michael Leonard Reardon, Mr Doug Crombie, Mrs Cynthia Crombie and Ms Haydee "Martines" (Martinez) were all Mr Michaels' co-accused (although the last three had pleaded guilty to the charge). Mr Michael Ralph Purchas, Paul Fehon, Kirstie Schofield, Oscar Alvarez Miranda and the person whose name is blacked out were witnesses for the Crown. Ms Beatrice Grana was a witness for Mr Michaels.
25 The list to which Mr Bonnici referred not only contained the names of the person to whom Mr Bonnici referred, but also others. It is appropriate to set out the document in full (though omitting telephone numbers and addresses) (typographical errors in original):
List of names of person to be call for the case of Edgar Michaels v The Commonwealth of Australia
The follow person to be call as witness in this proceedings. They have a clear information and knowledge of the fact that will be raise in this Federal court and the effect that these vicious illegal misconduct undertaken by the respondent had and could affect the harmony of our society and it principals fundamental democratic values.
· Mr Michael Leornerd Reardon and Mr William J Riley at present in the New South Wales Corrective Services System.
· Mr Doug Crombie. Mrs Cimthia Crombei, Ms Haydee Martines, Mr --------
· I understand the respondent are able to provide the address or location to these person.
· Mr Michael Ralph Purchas. Investigator Mr Paul Fehon and Investigator Mrs Kristin Schofield and Oscar Alvarez Miranda from the National Crime Authority at Sydney
· Mr Jorge Canelas or Mr Cristobal Valdez from the General Chile consulate
· Mr Michael McLean Secretary from the National Crime Authority and Senator Natasha Stett Despoja a member of this committee.
· The Commonwealth Attorney General
The Honourable Daryl Williams AM QC MP
· Minister for Justice and Customs.
Honourable Christopher Ellison
· I reserved the right to call these member of the government and the committees due to the reason that they are the person that pass laws and authorize operation that affect the ordinary live of our Australian fellow.
· Mrs Sabrina Cohn
Jewish Community Services
· Central Sydney Synagogue
Rabbi Mr M Kastel or Rev Mr Edward Belfer
· Ms Beatriz Grana
The accountant for the Paper recycling Tucatel Ltd
Mr Jose Molina
I reserve the right to add more names of person to be call if the circumstance arise, and to call these person in an order as the case is developing.
26 The letter from the applicant dated 14 August 2002 identified a number of matters which the applicant submitted were relevant to the proposed proceedings in the Federal Court. He said in the letter:
I expect that this material could be of assistance in providing a more credible insight into what really took part [sic] in Operation Opaline.
27 I set out below the substance of the letter (typographical errors in original):
1. Criminal record of Crown Witness Mr. Raymond Winslett, "please notice that Mr Winlett have been under Psychiatric treatment ordered by district court judge since 1996. (refer criminal records)
2. Mr Winslett have being illegally employ under the NCA and other police department such as NSW Crime Commission to created an conduct police drug set up as he has done it in the follow cases: Mr. Corn Karageorge, "Operation Opaline Michael Reardon, Douglas Crombie, Cynthia Crombie, and their two children, Haydee Martinez, Lily Villegas, Cliff Taylor Ian Cox and Edgar Michaels." "Mr. Craig Huesslar" "Operation Greeks Mr. Angelo kalpaxic" "Mr. Bill Clare" "Mr. William Riley" all this operation under the NCA
3. Mr Christopher Bonnici solicitor for the NCA tender an affidavit to the court of criminal Appeal were he admitted that not all the evidence on Operation Opaline were given to the defences and not disclose of Mr. Winslett Psychiatric records. (see affidavit last paragraph)
4. Audio tape report on the tape conversation of the 18 November 1997 between Inspector Michael Ralph Purchas, Edgar Michaels and Mr. Purchas and Michael Reardon. This tape was tampered because it contain evidence of death threats coercion against the accuses carried out by Inspector Purchas (refer: tape report)
5. The charge of conspiracy against Mr. Edgar Michaels is vicious and misleading, as I couldn't conspire with police officers due to the fact that Mr. Reardon had decided to return to Australia by 17 November 1997, Chile time, for this reason officer. Michael Ralph Purchas threatened his life. This threat should have been recorded on the tape used on 18 November 1997, unfortunately for the defence the tape has been tampered with by officer Purchas, during a meeting at Martin Place, Sydney, Australia time. Another fact of threats by officer Purchas is on tape recorded on a the 19 November 1997 where officer. Purchas threatens Mr. Edgar Michaels, in relation to a fax sent by Mr Reardon.
6. Before Mr. Reardon was sent for the first time to Chile he was given a "crash course on drugs" as he told Mr. Winslett that he doesn't know much about it, and Winslett decided that he couldn't provided them, this was under the instruction by police Paul Fehon from the NCA.
7. In his first trip to Chile Mr. Reardon failed to provide any drugs and any contact with anyone and he decided to return to Australia, but then he was threatened by officer Mr. Oscar Miranda and allege Chilean Police office or "member of the Jewish syndicate in Australia." When Mr Reardon returned for the first time from Chile he insisted that "he wanted out" instead the instruction given by police officers Paul Fehon and Inspector. Purchas to the informant Mr. Winslett was to put under further pressure to Mr. Reardon to continue arrangement to return back to Chile.
8. The police used three registered Police informants to manufacture this case otherwise the people that was charge would have never meet previously. The informant are Mr. Allen Dillon, Mr. Raymond Winslett, and Mr. Allen Johnston.
9. During cross examination on the integrity of the case, the police testified that they made an application for assistance to the Chilean Government Authorities previous or during the operation. A letter obtained after trial, from the offices of the Attorney General International Branch stated that no requests were carry out on behalf of the National Crime Authority or any of its members during June and November 1997, however there is evidence that this request was done on 8 July 1998 one year after the Operation Opaline had taken place and for different reason. This is proof that the Crown and the police engaged in inappropriate conduct by trying to cover the police illegality conducted in Chile. (refer to Commonwealth Attorney office letter 2 July 1999)
[emphasis in original]
28 Enclosed with the letter was a report dated 4 April 2002 prepared on behalf of Unisearch Limited which made some comments on the original tape used in the applicant's trial. This was put before the CCA. The conclusions of the author were as follows:
I am a practising Engineer with extensive experience in the analysis of recorded conversations and in audio engineering.
On 18 November 1997 Federal Agent Michael Purchas attempted to record via a radio link a conversation with Edgar Michaels at Martin Place, Sydney. This attempt was not very successful, resulting in only one minute of useful recorded conversation.
The recording has a number of technical problems including numerous breaks. This makes authentication problematic.
There is evidence which leads me to wonder if the recording presented is in fact the true original recording. Instead it may be an excerpt from the original recording.
29 In one sense the letter of 14 August and the material sent with it was does not take the claims of the applicant beyond what is in his affidavits and pleading. The applicant wishes to re-agitate the whole criminal trial throwing down a challenge to all aspects of the evidence used to convict him. He wishes to prove his innocence and the perfidy motivated by racial discrimination which led to his false conviction.
30 The primary submission made by the respondent was that the Court should refuse to exercise its discretion to extend time. This submission proceeded at a number of levels. First, as to [11] of the statement of claim and the particulars thereunder, it was said that to the extent that the particulars are not expressed to be "based on" the race or nationality of the applicant they are outside the RD Act and the HREOC Act. I think, however, the matter should be looked at globally. As I understand the applicant's submissions, the whole conduct of the NCA was based on the choice of the applicant as the victim of the alleged wrongful conduct by reason of his nationality. I do not think that I should dissect the particulars of the claim.
31 Secondly, it was submitted, as a matter of principle (that is, irrespective of the surrounding circumstances) that the matter would, if it had been filed within time, be struck out as an abuse of process. This was so, it was said, because it amounted to a collateral attack on the criminal conviction and unsuccessful appeal in the courts of New South Wales exercising federal criminal jurisdiction. Mr Markus referred to Ousley v The Queen (1997) 192 CLR 69. That case concerned, amongst other things, the question of collateral review of a warrant issued by Supreme Court judges under s 4A of the Listening Devices Act 1969 (Vict). In this context, McHugh J said the following (at 99) about orders of superior courts:
The Supreme Court of Victoria is a superior court of record. Judicial orders of superior courts cannot be made the subject of a collateral challenge. Such orders are valid until they are set aside or varied by appeal to a higher court even if they have been made in excess of jurisdiction [Scott v Bennett (1871) LR 5 HL 234 at 245; Cameron v Cole (1944) 68 CLR 571 at 590; DMW v CGW (1982) 151 CLR 491 at 504-505]. They cannot be treated as nullities [Sanders v Sanders (1967) 116 CLR 366 at 376]. It is not open to an inferior court to ignore them. Indeed, a superior court "which, after a real trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law" [Cameron v Cole (1944) 68 CLR 571 at 590]. If warrants issued under the Act by the Supreme Court are judicial orders, it follows that the trial judge was correct in holding that he had no jurisdiction to entertain a collateral challenge to their validity.
32 That, with respect, is not the precise problem here. The applicant does not seek to set aside the effect of the conviction and sentence. Rather he uses them to identify the damage caused to him. True, in so doing, he wishes to show that the conviction was wrongly arrived at, but it is not in a proceeding which attacks the efficacy or force of the conviction and sentence.
33 Reference was also made to Commissioner of the Australian Federal Police v Butler (1989) 91 ALR 293. There the applicant sought a pecuniary penalty against Butler under the Customs Act. Butler had previously pleaded guilty to various charges concerning narcotics. Though his convictions arose from a plea of guilty, Butler later wished to contest his guilt in the penalty proceedings. Hill J decided that he was bound by the evidence of a conviction and that he could not go behind it or permit a collateral attack on some element critical to it. Hill J referred to Hunter v Chief Constable of West Midlands Police [1982] AC 529 and Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209.
34 In Gungor, supra, a Full Court of this Court held that the conviction upon which a deportation order was based was not open to attack in a challenge to the deportation order. This proposition was affirmed in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.
35 In Hunter, supra, the House of Lords said that a suit for assault was an abuse of process in circumstances where, at his trial, the putative plaintiff had claimed a confession had been extracted by the assault in question, that issue had been dealt with on the voire dire and the confession was also held to have been voluntary. However, it was also held that the true purpose of the civil suit was not to recover damages, but to throw the conviction (which had occurred many years before) publicly into doubt. However, importantly, Lord Diplock said the following at 541-42:
The abuse of process which the instant case exemplifies is the initiation of a proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
…
My Lords, collateral attack upon a final decision of a court of competent jurisdiction may take a variety of forms. It is not surprising that no reported case is to be found in which the facts present a precise parallel with those of the instant case. But the principle applicable is, in my view, simply and clearly stated in those passages from the judgment of A. L. Smith L.J. in Stephenson v Garnett [1898] 1 QB 677, 680-681 and the speech of Lord Halsbury L.C. in Reichel v Magrath (1889) 14 App.Cas. 665, 668 which are cited by Goff L.J. in his judgment in the instant case. I need only repeat an extract from the passage which he cites from the judgment of A. L. Smith L.J.:
"…the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has been already decided by a competent court."
The passage from Lord Halsbury's speech deserve repetition here in full:
"…I think it would be a scandal to the administration of justice, if the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."
36 Such limitations as may exist in the reasoning in Hunter, supra, as discussed by McHugh J (in dissent) in Rogers v The Queen (1994) 181 CLR 251 at 288-89, do not affect the force of Hunter, supra, and its reliance on Reichel v Magrath (1889) 14 App Cas 665 in connection with a challenge as to the ultimate issue, such as guilt or innocence by verdict of a jury: Rogers, supra at 289 and Walton v Gardiner (1993) 177 CLR 378, 393. See also Connelly v Director of Public Prosecutions [1964] AC 1254, 1361-62. Reichel v Magrath, supra, has recently been applied by the New South Wales Court of Appeal (Mason P, Handley JA and Heydon JA) in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198, 202. Also, in New South Wales Bar Association v Somosi [2001] NSWCA 285 the Court of Appeal (Spigelman CJ, Sheller JA and Giles JA), citing Hunter, supra and Rogers, supra, said that insofar as a conviction was a material fact the Court would not permit a challenge to it in the proceedings before it. See also Tiufino v Warland (2000) 50 NSWLR 104 at [50] per Handley JA (with whom Mason P and Powell JA agreed); Tszyu v Fightvision Pty Ltd (2001) 104 IR 225 at [60] per Mason P (with whom Priestley JA and Powell JA agreed); Wilson v Commonwealth [1999] FCA 1308 at [11]; R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd (1987) 17 FCR 26, 34; Collins v State of South Australia [1998] SASC 6960 at [118]; Malan v Booth as Trustee of the Estate of Malan [2000] FCA 685 at [13]; Ravenor Overseas Inc v Readhead (1998) 152 ALR 416; Gargan v Official Trustee in Bankruptcy [1997] FCA 237.
37 In Butler, supra, Hill J said the following (at 302-3):
…[I]n my view public policy prevents a court going behind a conviction, that is to say seeking to set it at naught or seeking to challenge a matter upon which the conviction was based. It would indeed be a source of great embarrassment if a court in a civil case could rehear a matter which had been passed upon by a judge and jury and perhaps reach a conclusion contrary to that reached after the trial. If the decision of the judge and jury in a criminal case is to be challenged then that challenge must be mounted by way of an appeal, the appeal being to the relevant court of criminal appeal and not in a collateral way in civil proceedings in another court.
It is not necessary to enter into the debate as to whether the doctrine of issue estoppel has any application to criminal proceedings, a question as to which the members of the High Court expressed divergent views in R v Storey (1978) 140 CLR 364; 22 ALR 47. It is sufficient to base my decision upon the doctrine of public policy in accordance with the authorities to which I have referred and the rejection by this court of Hollington v F Hewthorn & Co Ltd [1943] KB 587 which had long been accepted as authority for the proposition that a finding of guilt was not evidence in a civil proceeding involving the same factual issue. Of the latter case the House of Lords in Hunter agreed that it was "generally considered to have been wrongly decided".
[emphasis added]
38 Branson J reviewed many of the relevant authorities in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313. Given her Honour's analysis, I am able to minimise my reference to authority. In Ali, supra, the question arose whether the Administrative Appeals Tribunal could go behind a conviction and sentence (not being the conviction and sentence upon which the power to deport was based). Her Honour concluded (at 325-6), after a review of the authorities, in the context of the Migration Act 1958 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth), that:
Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences (see Gungor per Fox J at 445-446); and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals (see Gungor per Sheppard J at 469).
As a consequence, in my view, the Act should be construed as requiring a decision-maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted (see Spackman at 635). This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.
Fourthly, although a decision-maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted (see Saffron per Lockhart J at 592).
[emphasis added]
39 Branson J was, of course, dealing with a different statutory context. The statutory context here is the cause of action provided for in subs 46PO(1) of the HREOC Act. Orders of a wide nature including compensation are available if the Court is satisfied that there has been unlawful discrimination: subs 46PO(1).
40 Provisions vesting judicial power or discretion in Courts should not be read down by reference to words absent from the statute: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [19] and the High Court authorities there cited; see also Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 at [14].
41 This Court has had conferred on it jurisdiction under an Act of the Commonwealth Parliament to give a remedy in the circumstances provided for. However, I do not read the statute or the authorities referred to in Branir, supra, as requiring the Court to permit a case to be conducted which is an abuse of process, or as limiting the exercise of any discretion, otherwise properly available, by excluding from consideration of its exercise, questions of public policy and abuse of process.
42 Amongst the cases considered by Branson J in Ali, supra, was the Full Court decision in Saffron v Commissioner of Taxation (1991) 30 FCR 578. It is a fine question as to whether the cases considered by her Honour, in particular Saffron, supra, disclose a principle of law that prevents the issues which the applicant seeks to litigate in the cause of action provided for by Commonwealth legislation (his innocence, the wrongfulness of his conviction, the perjury and false evidence of NCA officers and the racially discriminatory basis of that perjury and false evidence) being litigated. However, what these cases certainly disclose are powerful public policy considerations against allowing (except, perhaps, in the most exceptional circumstances) relitigation of, and effective collateral attack on, criminal convictions. Such considerations are potently relevant to the exercise of any discretion to extend time here.
43 Whilst the applicant uses the conviction and sentence to found his claim for damages, he wishes to prove that he was in fact innocent of the charges in respect of which he was convicted. In those circumstances, it could, perhaps, be said that the applicant's position is more akin to the second, rather than the first category referred to by Viscount Simon in General Medical Council v Spackman [1943] AC 627, 634, 635 and discussed by Davies J in Saffron, supra at 581-82. Davies J (at 582) however, left open the question of the admissibility of the conviction in civil proceedings: see Hollington v F Hewthorn & Co Ltd [1943] KB 587; but see now s 92 of the Evidence Act 1995 (Cth).
44 Lockhart J in Saffron, supra, after an analysis of Hunter, supra, said the following (at 589):
Hunter v Chief Constable (supra) is therefore authority from the highest source in England that, where a final decision has been made by a criminal court of competent jurisdiction, it is general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and if it does, it is an abuse of the process of the civil court. An exception may exist where fresh evidence is sought to be adduced in a civil action which was not available at the trial; but whether it is such an exception will depend on the facts of the particular case. As Lord Diplock noted, the English authorities are collected in the judgment of Goff LJ in the Court of Appeal in Hunter v Chief Constable (at 324-339) where his Lordship carefully reviewed the earlier authorities in England and in the United States of America.
Hunter v Chief Constable is a very different case from the present one. The essence of the reasoning of the House of Lords was that the civil proceedings were a "collateral attack" upon the criminal conviction, with the dominant purpose of the civil action being, not to recover damages, but to challenge the foundation of their conviction at a time when it was likely that the principal witnesses called for the prosecution at the trial were either not available or their memories had faded, and that the only witnesses whose evidence would be clear would be that of the plaintiffs, the Birmingham Bombers themselves; that is, the abuse of process lay in the House's opinion that the proceedings were brought for the purpose of collateral attack on the final decision of a court of competent jurisdiction. The present case is a far cry from Hunter v Chief Constable.
[emphasis added]
45 After a review of further authorities, Lockhart J found no abuse or relevant collateral attack on the conviction in circumstances where the (convicted) taxpayer was continuing an objection procedure which had been commenced before he was charged. However, importantly for the matter before me, Lockhart J qualified these views by the following statement (at 592):
What the applicant seeks to do in the tax appeals, as I understand it, is to deny an agreement between himself and Mr Anderson to the effect that not all of the cash received from the conduct of various businesses in which they were involved would be declared for income tax purposes. This is an assertion of fact which is relevant to the tax appeals; and I can see no good reason why he cannot lead evidence to that effect if he wishes. The respondent may lead evidence to the contrary and in the result the primary judge can determine the facts. But the court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth. The processes of and respect for the criminal law would not be undermined by the applicant leading evidence of the kind which he seeks to lead. The position would be different if this evidence was led for the purpose of impugning the applicant's conviction or the fairness of his trial.
[emphasis added]
46 The emphasised passage was referred to and relied on by Branson J in Ali, supra (see [38] above).
47 It is plain that the applicant seeks to have this Court make a finding that he was wrongly convicted. That is essential to his claim for relief. He says that his conviction only occurred by reason of the giving of false evidence by the NCA officers who were motivated by discrimination. There is thus a clear and central attack on the conviction in collateral proceedings. One can hypothesise circumstances (quite different to the circumstances identified here) of clear and unarguable evidence, now available, that authorities, motivated by racial bigotry, brought forward false charges supported by perjured evidence against an accused so as to indulge or satisfy their prejudices. This case is far removed from such an extreme hypothesis. In such an extreme case one would have thought that there was a good likelihood of the conviction being in some fashion set aside: cf Part 13A of the Crimes Act 1900 (NSW). Here the applicant makes sweeping and unparticularised assertions that the alleged conduct took place "based on" his nationality. The criminal trial ventilated the issues of false evidence and perjury. The officers of the NCA gave evidence and were cross-examined. The applicant's present complaint could have formed part of that cross-examination; there was a foundation for it. The applicant gave evidence before the jury. His conviction bespeaks a refusal of the jury to conclude that the evidence against him was perjured or tampered with. He appealed to the CCA. The appeal was dismissed. Based on the witness list provided (see [25] above), apart from federal politicians whose relevance to the matter was not sought to be explained, no fresh determinative evidence was identified, save for the equivocal report provided under the letter of 14 August. The participants in a trial which lasted one and a half months are to be called once again to give evidence, in order to prove the innocence of someone already duly convicted by the jury.
48 In my view, in the light of the authorities to which I have referred, I should not, as a matter of principle, permit a suit in this Court the avowed and central aim of which is to call for a finding that the criminal conviction of the applicant was wrongly made, that is to collaterally attack the conviction. Alternatively, the overwhelming public policy evident in the cases to which I have referred persuades me that I should not, as a matter of discretion, allow this to happen and that I should not exercise my discretion to give any extension of time for that reason. This overwhelming factor in the exercise of my discretion is reinforced by the insight into the nature of the likely case which can be gleaned from the applicant's affidavit ([22] above), the witness list ([25] above), the content of the letter of 14 August 2002 ([27] above), the lack of any particularisation of the unlawful discrimination, the lack of any evidence of the unlawful discrimination (that is that the alleged conduct was "based on" race or nationality), and the apparent avowed aim of the litigation to re-agitate matters litigated before the jury and on which the jury must have formed credit views.
49 I am satisfied that in all the circumstances to allow these proceedings to go forward would amount to the condoning of an abuse of process and that I should not exercise my discretion to extend time to file the application.
50 In these circumstances, the application having been made out of time, it should therefore be dismissed as incompetent. The orders of the Court will be that:
(a) the application under subs 46PO(2) to extend the time for the filing of the application in this matter be dismissed;
(b) the proceedings therefore be dismissed; and
(c) the applicant pay the costs of all the respondents of the whole proceedings.
51 I wish to express the Court's thanks and gratitude to Dr Macken for his provision of assistance and to express my thanks to both Mr Markus and Dr Macken for their assistance in argument.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.