O'Donoghue v Honourable Brendan O'Connor

Introduction 1 The applicant applies to amend the grounds of review in this matter following the hearing of his substantive application for review but before delivery of judgment. He seeks to introduce a ground asserting fraud in respect to the extradition request document. The lateness of this application is said to be the result of fresh evidence which has come into the applicant's possession. If successful in that course he then seeks leave to reopen his substantive application to argue that additional ground. 2 The Court has the power to grant leave for further evidence to be adduced after the trial of the proceeding has concluded and judgment reserved, fresh evidence being one of the four recognised classes of case in which a court may grant leave to re-open: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]. Kenny J stated in Bradshaw, at [24] and [26] that in every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open. Kenny J referred to Murray v Figge (1974) 4 ALR 612 in which Muirhead J held, at 613-614, that fresh evidence should only be admitted when: (a) it is so material that the interests of justice require it; (b) the evidence if believed would most probably affect the result; (c) the evidence could not by reasonable diligence have been discovered before; (d) inadvertence was established; and (e) no prejudice was suffered by the other party by reason of its introduction at a late point in time. 3 At the hearing of the substantive application on 13 June 2011 the applicant was represented by senior counsel. The applicant was not present in Court. He had been brought from prison to the precincts of the Court but for some reason was not then brought to the court room for the hearing. 4 Following correspondence from the applicant to the Court, the matter was relisted for hearing on 7 July 2011. At that further hearing the applicant appeared in person. The applicant advised the Court that he had been unable to find alternative counsel to assist him, and sought an adjournment. The court ordered that the matter be adjourned to a date to be fixed, and a further hearing took place on 21 July 2011. 5 At the hearing on 21 July 2011 the applicant again appeared in person. He provided to the Court and the first and second respondent's solicitors the "Applicants Further Submissions" dated 18 July 2011 and copies of five documents marked Annexures 1, 3, 4, 5 and 6. The applicant submitted that the extradition request from the Republic of Ireland dated 26 May 2004 was a fraud and sought to re-open his substantive application and to amend Ground 1 on the basis of fresh evidence constituted by the annexed documents. 6 Ground 1 provided relevantly as follows: 1. The Attorney-General of the Commonwealth, erred in law and fact and misdirected himself on a fundamental matter regarding whether the Applicant was an "extraditable person", and whether there was an "extradition objection" and made a jurisdictional and procedural error, in deciding to issue, and issuing, pursuant to s 16 of the Act, a Notice of Receipt of Extradition Request (the "s 16 Notice") on 5 January 2005. Particulars (a) According to information provided to the Applicant, pursuant to the Applicant's freedom of information request of the Attorney- General's Department, the request for the Applicant's extradition by the Republic of Ireland had not properly been made prior to 24 May 2005. (b) Consequently, the Attorney-General could not have been satisfied that a request for extradition had been made, prior to issuing the section 16 Notice. . . . 7 The Court made orders on 21 July 2011 that: (a) the applicant file and serve a minute of proposed amended Ground 1 of his grounds of review by 29 July 2011; (b) the applicant file and serve on or before 4 August 2011 an affidavit explaining why the documents relied upon by him in support of his application to re-open his application for review were not available to be produced to the court at the hearing of the substantive application on 13 June 2011; and (c) the respondents file and serve on or before 4 August 2011 any affidavit(s) in response to the application to amend Ground 1 of the Grounds of Review and re-open the substantive application and to file an outline of written submissions in reply. 8 Pursuant to the orders made on 21 July 2011 the applicant filed and served a Minute of Proposed Amendments to Grounds of Appeal dated 28 July 2011. The application is supported by affidavits sworn by the applicant on 4 and 5 August 2011. 9 The first and second respondents elected not to file any affidavits in response to the application to amend Ground 1 and re-open the substantive application. 10 The applicant's affidavit of 4 August 2011 contains a considerable amount of irrelevant material. It is to an extent inaccurate. As the applicant conceded at the hearing of this application para 7 sets out the dates 7 July 2011 and 10 July 2011. These are typographical errors on the applicant's part. They should have been 7 June 2011 and 10 June 2011. 11 The affidavit also seeks to explain the delay on the part of the applicant in bringing the "fresh evidence" to the attention of the Court. I will accept, for the purposes of this application, without deciding, that the delay involved, should the documents be fresh evidence, is satisfactorily explained. 12 The applicant's affidavit of 5 August 2011 attaches a document entitled "CASEWORK-IN-CONFIDENCE" dated 18 November 2005. It is an internal note within the Attorney-General's Department concerning a Freedom of Information Request by the applicant. The applicant refers to paragraph three of this document which states: We are both of the view that all communications between Australia and Ireland in relation to this matter should be exempt under section 50 of the Extradition Act 1988. 13 This is a reference to the result of a discussion between the author of the document, a legal officer with the Extradition Unit of the Attorney-General's Department, and the Director of that Unit. 14 The affidavit also attaches a document entitled "O'Donoghue - handover notes". In para 3 it states "It may be that further litigation comes out of those documents". Finally it attaches part of the transcript of the s 19 hearing before Magistrate Calder. 15 None of these documents would likely affect the result of the applicant's proposed ground of alleged fraud. That this is so, is self-evident in respect to the first two documents. I will deal with the transcript later.