Contention not supported by the facts
51 It is necessary to set out in chronological order the facts as disclosed by the evidence tendered before the Court. The Request was dated 21 June 2007. On 24 July 2007, the Request was heard by the Athens Court of Appeals. Argument concluded on 24 July 2007. The Athens Court of Appeals reserved its decision until 10.00 am on 26 July 2007.
52 The Applicant complains about two communications. He submitted that each communication:
(1) constituted a communication from Australia, through its diplomatic representative in Athens, directly to the Athens Court of Appeals;
(2) was made in bad faith with the intention of influencing the outcome of proceedings in Greece.
The evidence did not support these conclusions.
53 The first communication about which the Applicant complains is an email from the Deputy Head of Mission, Australian Embassy, Athens to "Ms Koletta" whose email address bears the domain name "@justice.gov.gr" ("the First Email"). Counsel for the Respondents submitted that it is open to me to assume that Ms Koletta was part of the Justice Department in Greece. The terms of the First Email are important. It stated:
"…
Sent: Tuesday, July 24, 2007 12:01 PM
Subject: FW: Mokbel - Supplementary Affidavit from Victoria [SEC=CASEWORK-IN-CONFIDENCE]
[SEC=IN-CONFIDENCE:LEGAL]
Dear Ms Koletta
As per our discussion. Please find attached advice from Australian Attorney-General's concerning dispatch of a supplementary affidavit - which will be forwarded through the diplomatic channel as soon as it is received - which the Council of Judges may wish to consider in their determination of the exercise of their discretion to extradite Mr Mokbel for offences included in the original Extradition Request which may be considered to have been committed in part in Greece.
The affidavit apparently sets out evidence which provides with greater certainty the dates when Mr Mokbel was still in Australia - later than originally thought.
I would be grateful if you brief the Public Prosecutor to petition the Council of Judges for sufficient time for them to receive this affidavit through the diplomatic channel - and their deferral of consideration of this matter until the affidavit is available. The affidavit is set to arrive at the Embassy on 26 July.
Thank you.
…"
(Emphasis added.)
54 The next documentary record relevant to the First Email is an email purportedly sent by a person described as the "Deputy Public Prosecutor of the Court of Appeals from The Public Prosecutor of the Athens Court of Appeals" to "Mr. President of the Athens Court of Appeals" on 24 July 2007 entitled "Forwarding of documents by the Australian Embassy regarding the case of extradition of the Australian citizen {SURNAME} MOKBEL {NAME} ANTONIOS SAJIH" ("the First Supplementary Email"). The First Supplementary Email read:
"REF.: Our document A.P. EKD 1692 FE 5829 dated 12-07-2007
Following our abovementioned relevant document, we are conveying to you the e-mail dated 24-07-2007 which was forwarded to our Service from the Ministry of Justice and we request your actions."
(Emphasis added).
55 The Applicant contends that the First Email and the First Supplementary Email provide evidence of a communication from the Deputy Head of Mission, Australian Embassy, Athens to the Athens Court of Appeals which was direct and in bad faith. Further, the Applicant contends that the communications are of further significance because they were not in the form prescribed by the Treaty and were not communicated to him prior to the decision of the Athens Court of Appeals in circumstances where the contents "seek … to rebut a possible defence which could have been raised about Mr Mokbel being in a particular place and at a particular time …".
56 None of those contentions is made out. The First Email from the Deputy Head of Mission, Australian Embassy, Athens did go to an official in the Ministry of Justice in Greece. That was not in dispute. However, the Deputy Head of Mission, Athens did not send the First Email to the Athens Court of Appeals. What happened to it next was a decision for the official in the Greek Ministry of Justice. There is no evidence to determine how or why the First Email went from the official in the Greek Ministry of Justice to the Deputy Public Prosecutor of the Court of Appeals. It could have gone directly or indirectly.
57 Moreover, the express terms of the First Email cannot be ignored. It refers to the fact that a supplementary affidavit is yet to arrive in Greece and when it does it will be forwarded through the diplomatic channels. There was no evidence that any supplementary affidavit did arrive. The second paragraph predicts that when the affidavit arrives it will provide greater certainty about dates. As Counsel for the Respondents submitted, what those dates might be was not identified. Contrary to the Applicant's submissions, that paragraph did not "rebut a possible defence in the extradition proceeding as to the Applicant being in a particular place at a particular time." Even if, contrary to the position in Australia, Greek law would take account of a possible defence to the crime or crimes in respect of which extradition is sought, the Applicant knows the relevant facts without the assistance of the Australian Government. The judgment of the hearing before the Athens Court of Appeals records that the Applicant was present at the hearing and led evidence. There was no evidence of a direct communication by the Deputy Head of Mission, Athens to the Athens Court of Appeals. What the recipient of the email did with it was a matter for that recipient.
58 The only evidence of a communication to the Athens Court of Appeals is found in the First Supplementary email - being an email from the Deputy Public Prosecutor of the Court of Appeals which requested the actions of the Athens Court of Appeals. The description of the sender of this email is important. It is a communication which, on its face, is a communication from an officer of the Court itself and there is no basis upon which it can be said that according to Greek law this communication was in any way inappropriate. And it remains important to recognise that what the Athens Court of Appeals did in response to the request made in the email was a matter for it. But while either of these considerations would be sufficient reason to put this aspect of the matter to one side, there is a more fundamental principle that requires that conclusion. That principle is that for an Australian Court to comment on, or intervene in, the manner in which the Greek Ministry of Justice Official dealt with the First Email, or for that matter, how the Athens Court of Appeals conducted the Request hearing, would run directly counter to fundamental principles of public international law.
59 The courts of one country will not sit in judgment on the acts of the government of another done within its own territory. This principle of non-adjudication is consistent with the international rule of comity which refers to the respect or courtesy accorded by a country to the laws and institutions of another. This was made clear in Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41:
"The rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory. The statement of Fuller C.J. in Underhill v Hernandez [(1897) 168 U.S. 250, at 252] that "the courts of one country will not sit in judgment on the acts of the government of another done within its own territory" has been repeated with approval in the House of Lords (Buttes Gas v Hammer [[1982] A.C. 888, at 933]) and the Supreme Court of the United States: Banco Nacional de Cuba v Sabbatino [(1964) 376 U.S. 398, at 416]. So, in Oetjen v Central Leather Co. [(1918) 246 U.S. 297, at 304] the Supreme Court said:
"To permit the validity of the acts of one sovereign State to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations'."
As Lord Wilberforce observed in Buttes Gas v Hammer [[1982] A.C., at 931-932], in the context of considering the United States decisions, the principle is one of "judicial restraint or abstention" and is "inherent in the very nature of the judicial process".
See also Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 559 (Mason CJ, Deane, Dawson and Gaudron JJ); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [27] - [30] (North J) and Gamogab v Akiba (2007) 159 FCR 578 at [32] (Kiefel J).
60 French J made the following observations on the application of non-adjudication to extradition cases in Cabal v United Mexican States (No. 3) (2000) 186 ALR 188 at [104]:
"[I]t is important to bear in mind that the general functioning of the judicial system of an extradition country is not a matter for this court. Such judgments, no doubt, have a part to play in the decision of the executive government in entering into the treaty. They may also, at least in theory, have a bearing upon the legislative decision whether or not to disallow particular treaty regulations and in the ultimate decision of an Attorney-General whether or not to surrender a requested person. The acceptability to Australia of the system of criminal justice in an extradition country is an issue "...to be determined by the Government of the Commonwealth when deciding to extend the application of the Extradition Act to the State in question, whether by treaty or regulation, and, in a given case, perhaps before ordering the surrender of the fugitive ... in exercise of the discretion ... given the Attorney-General": Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 514; 86 ALR 464 per Gummow J. That is not to say that governments and judicial systems of requesting countries may not have changed significantly since a treaty of extradition was entered into. But the continuance of the treaty and ultimate surrender decisions are still matters for the executive and not for the courts."
(Emphasis added.)
See also Todhunter v Attorney-General (Cth) (1994) 52 FCR 228 at 250 - 251; Sun Lau v Australia [1999] BCJ No 2971 at [73] -[77] citing United States of America v McVey (1992) 77 C.C.C. (3d) 1 (S.C.C.) at 40 and Schmidt v the Queen (1987) 33 C.C.C. (3d) 193 (S.C.C.); McCrea v Minister for Customs and Justice (2004) 212 ALR 297 at [33] - [36] citing R v Secretary of State for the Home Department; ex parte Johnson [1998] 4 All ER 635 at 644, Royal Government of Greece v Governor of Brixton Prison [1971] AC 250 at 280 and Republic of Argentina v Mellino [1987] 1 SCR 536 at 554; R v Secretary of State for the Home Department; ex parte Hill [1999] QB 886 at 905.
61 The Applicant correctly contended that the First Email was not in a form prescribed by the Treaty but that does not assist him. The First Email was not part of the Request, was not a "supporting document" as prescribed by Art 5 of the Treaty and therefore was not required to be in the form prescribed by Art 6 of the Treaty.
62 I now turn to the second communication about which the Applicant complains - a further email from the Deputy Head of Mission to an official in the Greek Ministry of Justice ("the Second Email"). It was in the following terms:
"…
25/7/2007 02:56 PM
Subject: Response to claims made in Mokbel court hearing that Extradition Request was not legally done by Australia [SEC=UNCLASSIFIED]
…
Dear Ms Koletta,
Hello. Just a quick few lines - which may not be necessary - to address the frivolous claims made in Mokbel's hearing by the defence counsel that Australia's Extradition Request was not legally performed.
Responding to questions from journalists in Australia the federal Justice Minister, David Johnston, responded that the government had followed correct legal procedure in seeking extradition. A spokeswoman for Senator Johnston dismissed the claim that the Attorney-General must sign the Extradition Request noting: "both the Attorney-General and the Minister for Justice and Customs have been appointed to administer the Attorney-General's Department, as such, the Minister for Justice and Customs may exercise the power given to the Attorney-General in section 40 of the Extradition Act, because of the operation of other sections of the Interpretation Act."
Our colleagues in Attorney General's Dept have also noted the following:
"The Australian media today reported heavily about claims that Australia's extradition request for Mokbel is invalid because the request was not signed by the Attorney-General. This claim is incorrect.
While this is essentially a domestic issue for Australia (the Extradition Treaty between Australia and Hellenic Republic does not require that the extradition request be signed by the Attorney-General - although it does stipulate that the request comes through the diplomatic channel - representing as it does a direct and lawful communication from the Head of State and Australian Government). However should the Prosecutor or the Council require Australia can make available a summary of advice and the relevant instruments of appointment that establish that the Minister for Justice and Customs can exercise powers vested in the Attorney-General under the Extradition Act 1988".
I would be grateful if you could - if necessary or desirable as you see fit - draw this to the attention of the Prosecutor, although I note in his presentation he submitted to the court that the Request was legally valid.
Cheers and all the best."
(Emphasis added.)
63 As with the First Email, the next documentary record relevant is an email purportedly sent by a person described as the "Deputy Public Prosecutor of the Court of Appeals from the Public Prosecutor of the Athens Court of Appeals" to "Mr. President of the Athens Court of Appeals" on 26 July 2007 entitled "Forwarding of documents by the Australian Embassy regarding the case of extradition of the Australian citizen {SURNAME} MOKBEL {NAME} ANTONIOS SAJIH born 11-08-1965 in Lebanon" ("the Second Supplementary Email"). The Second Supplementary Email read:
"REF.: Our documents A.P. EKD 1692 FE 5829 dated 12-07-2007
Following our abovementioned relevant document, we are conveying to you the e-mail dated 25-07-2007 of the Australian Embassy and we request your actions."
(Emphasis added.)
64 This documentary trail suffers from the same defects as the First Email and the First Supplementary Email. It provides no evidence of a direct communication by the Deputy Head of Mission, Athens to the Athens Court of Appeals. Whether the Supplementary Emails were sent and their significance, if any, is a matter for the Greek Judicial System. The Deputy Head of Mission, Athens took no step which was inappropriate.
Relief Sought
65 The foregoing reasons deal with the substance of the arguments advanced by the Applicant. They require the conclusion that the application be dismissed. It is as well, however, to go on to say that it is greatly to be doubted that, even if established, the matters urged by the Applicant would found any claim to relief of the kinds claimed. Not only does the Applicant not identify how relief under s 39B of the Judiciary Act (or any associated relief) could be framed in a way that would achieve the practical result of interrupting the extradition process, the difficulties in framing such relief point to more fundamental difficulties in the Applicant's case. The practical consequence the Applicant sought to achieve is to have the extradition processes being undertaken in the Hellenic Republic brought to an end. The Applicant seeks a variety of relief intended to compel that ultimate end - injunction, prohibition, and mandamus. In addition he seeks declarations though, of course, that relief would have no directly coercive consequence.
66 The fundamental difficulty presented by these claims is that the Applicant points to no public duty which it seeks to enforce and points to no departure from the lawful performance of what is required under the Extradition Act. Rather, he points to matters extraneous to the operation and execution of the Extradition Act and says that, on that account, the Request should be withdrawn.
67 Mandamus would not lie to compel the result sought. The decision to seek extradition had been made and the Request transmitted to the Hellenic Republic before the events of which the Applicant now complains and it has not been suggested that the decision to seek extradition or the Request was not lawfully made. That being so, certiorari would not lie to quash the Request. There is no further act to be performed by the Australian executive (whether required by the Extradition Act or otherwise) which could be made the subject of prohibition.
68 The Applicant has not made good the bases for his claims to relief.