Administrative Appeals Tribunal of Australia|1979-05-24|Before: Brennan J

The applicant and his wife bought a home at 32 Arunta Street, Narrabundah. After the applicant was married, and while he was working as a truck driver for the Government Printing Office, he supplemented his income by doing some tailoring work at home after hours. Mrs. Pochi also went to work for a little time, but their first child, Anthony, was born 11 months after the marriage and Mrs. Pochi's health did not allow her to continue working after the birth of that child. The second child, Serina, was born in 1964, and again Mrs. Pochi was ill during and for a time after that pregnancy. Her health improved sufficiently to allow her to go back to work, first as a cleaner and then as a secretary, but she stopped work before the birth of the third child, Claudia, in 1973. In the meantime, the applicant had left his job as a truck driver and gone into partnership in a tailoring business in Canberra. Although the evidence is not precise, he does not appear to have made a large income from tailoring but he continued in business from 1963 until August 1975. His partnership was terminated in 1971 or 1972, and he carried on the business on his own account thereafter. The business was sound enough to warrant the expenditure of some $3,000 on fittings for his shop in 1974. The refurbishing of this shop was accomplished whilst the applicant was on a trip back to Italy in that year, when he bought some quality clothing for import and sale. The trip cost him about $2,000.

Anthony was enrolled at the Marist Brothers College at Pearce. He is now nearly 16. His teacher describes him as a "quiet, retiring lad, very well-mannered [who] has not been reported for any serious disciplinary conduct whatsoever during his four years at the school, who mixes with a group of boys who are very much on-side, very positive, very loyal to the school". His teacher saw Anthony as "a well-mannered, well-conducted, loyal student of the college", and very much an Australian child. English is his first language. He does not read or write Italian. Anthony finished his fourth year of secondary school last year, science being his major subject.

Serina, a year younger than Anthony, finished her third year in 1978, and is described by the headmaster of the Catholic Girls High School, Griffith (A.C.T.), which she attended in her third year in 1978 as "a very quiet, well-behaved and interested pupil...of average ability, an IQ somewhere around about 100 and a student who seems to try very hard". Her reports give the picture of "a co-operative, good child". When asked whether he saw Serina as a member of the Australian community, the headmaster replied, "Oh, this is an Australian child". Claudia attends kindergarten at the Sacred Heart School at Pearce. She started there in 1978 but, for reasons that are not hard to understand, she appeared during that year to be immature and unsettled. As a result she has had to repeat kindergarten and she seems to be settling better this year. Sister Noonan, the principal of the school, was asked whether Claudia is truly an Australian child. She replied, "Yes, in every way she thinks, and acts, and talks. Yes, definitely."

Mrs. Pochi also considers Australia to be her country. She has never returned to Italy. She gives the impression of a devoted wife and mother, fiercely concerned with her family's welfare and intent on keeping the family unit together. She has been faced with an awful dilemma, for her husband has been ordered to be deported, and the affirmation of that order would require Mrs. Pochi to choose between the family's accompanying the applicant back to Italy, or breaking up the family in order to provide the children with the advantages of living in Australia - their country of birth, residence and citizenship. Neither Mrs. Pochi nor any of the children could be compulsorily deported, but the applicant (whose application for naturalization miscarried in circumstances presently to be mentioned) is still an alien and, pursuant to s.12 of the Migration Act 1958, he is liable to deportation by reason of his conviction for an offence for which he was sentenced to imprisonment for 2 years, with a 1 year non-parole period. Mrs. Pochi was asked how she would solve the dilemma:

"Q. If your husband were required to leave Australia, could you just tell us - you told my friend quite a lot about the difficulties that that might involve. What I would like to know is, having weighed them all up, would you go with him or not?

A. Well, there would have to be a final decision to that and I think that in a matter such as this that final decision has not been decided upon to this day. We are hoping that day will not come and we will not have to make that decision, that we will be permitted to stay here as Australians. We regard ourselves that, and we feel that we should stay.

Q. You told him [a departmental officer] that if your husband went, you would go - that was the effect of it, is that right?

A. What else could I do, live separate from him? ...I'm saying what I'm feeling, Your Honour. I feel that with the love that has been in my family and whatever it took, if I had to go on the other side of the world, I wouldn't live separate to my husband and have him part from my children. But I will do everything I can to stay in this country where we belong because I feel that, I don't know why it is happening but I'm trying to take it at its best, that's all."

The gravity of the deportation order to the applicant himself is obvious. Apart from the disruption to his family life which would inevitably follow his deportation, the applicant would suffer an interruption to his life as an established member of an Australian community. He has worked and lived with his family in Canberra for many years, he is a member of the Italian/Australian Club, and he is favourably known to a large number of Canberra citizens (of both Italian and non-Italian origin) who signed a petition asking that he be allowed to remain in Australia. This petition, which was prepared in the office of Mr. Fry, M.P., was presented to the House of Representatives. Representations were also made to the Minister by Mr. Haslem, M.P., and by other citizens.

The applicant applied for Australian citizenship on two occasions: on 11 September 1974 and on 8 August 1975. The Minister's statement furnished under s.37 of the Administrative Appeals Tribunal Act 1975 says: "A Grant of Citizenship was approved on each occasion but the applicant did not proceed to take up Australian citizenship". I take it that the statement infers a failure, or at least an omission, on the applicant's part to take up citizenship when he was given an opportunity to do so.

In order to clear up an uncertainty as to the applicant's pursuing his application for citizenship, the Tribunal summoned the relevant files. A synopsis of the relevant parts of the files was furnished by the Department. It is clear that an application for citizenship was lodged on 11 September 19 74, a few days before the applicant left for his trip to Italy. The application was processed and, on 25 February 1975, the Minister's delegate approved the grant of citizenship. However, Australian citizenship is not conferred by S.15(1)(a) of the Australian Citizenship Act 1948 until allegiance is sworn after the grant of citizenship is made, and there is nothing on the file to show that the decision to grant citizenship was ever communicated to the applicant. According to the file, the applicant returned to Australia on 21 October 1974 and, at some time on or before 17 March 1975, applied for registration under the Aliens Act 1947. Curiously, that application, which must have been placed upon the same file as that which contained the citizenship papers (for I am assured that the relevant files have been produced), did not stimulate any departmental action as to the grant of citizenship. Instead, a notice was sent to him on 4 April notifying him of approval of his application for registration under the Aliens Act.

The departmental synopsis says this letter was returned to the Department on 23 April "evidently [because it] could not be delivered". The applicant and his wife were living at 96 Macfarland Crescent, Pearce, at that time and the letter was addressed there. No envelope is on the file. There are two date stamps on the letter - the first a Departmental date stamp bearing the date 23 April, and the second a stamp of the Citizenship Section of the Department dated 1 May 1975. Whatever the explanation of the. return of this letter may be, I do not accept that its return to Departmental files provides any excuse for the seeming failure of the Department to take any or any adequate steps to notify the applicant that he had been granted Australian citizenship. A file note of 22 September 1978 says "It is not known what happened to the application between that date (viz., 25 February 1975) and 8 August 1975 when he re-applied."

The second application did not get to the stage of the grant being approved. There is a file note on 5 November 1975 that "the case may proceed", but there is no recommendation of a grant and no grant of citizenship on the file. This file note was construed by the Departmental synopsis as amounting to a decision by the Minister's delegate that the "application was one for approval" - a construction which is not self-evident.

The file record does not support the Ministerial statement that the "grant was approved on each occasion" (for it seems that a grant was approved but once) and it does not support an inference that there was some omission on the applicant's part to take up the grant (for it seems that he knew nothing of the grant). When the Minister is considering whether an alien should be deported under s.12 of the Migration Act, it is important that he be furnished with an accurate exposition of the alien's attempts to obtain citizenship - an exposition which, it appears, he did not receive in the present case. And a statement under s.37 of the Administrative Appeals Tribunal Act should furnish this Tribunal with an accurate exposition of the alien's attempts to obtain citizenship. Those attempts may be relevant (and in this case they are relevant) to the decision which should be made. If the Department had advised the applicant of the grant of citizenship, he would probably have taken up the grant, as his renewed application for citizenship testifies, and he would thus have been outside the ambit of s.12. As it is, he did not succeed in shedding his alien status and he is thus amenable to the application of s.12.

"That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities", observed the Supreme Court of the United States in Harisiades v. Shaughnessy [1952] USSC 51; 342 U.S. 580 (1951) at p.587, but an alien is one whose rights and obligations are different from those of an Australian citizen, and the difference warrants the assertion of the power to deport for as long as the alien status is retained, and the exercise of that power in appropriate cases. There can be no indefeasible right to remain in Australia - unless the obligations of Australian citizenship are accepted. As the United States Supreme Court said (ibid. at pp. 586, 587):

"Most importantly, to protract this ambiguous status within the country is not his right but is a matter of permission and tolerance."

In the present case, the applicant sought to terminate his "ambiguous status" before there were any known grounds for deporting him, and it is a relevant hardship to visit him with the consequences of failing that attempt. It is relevant that his liability to deportation depends in part upon an apparent failure to advise him that the grant of citizenship had been made.

The deportation order is based upon a conviction of the applicant on 17 March 1977 before the District Court at Griffith. He was convicted of the supply of Indian hemp, and he was sentenced to imprisonment for 2 years, and a non-parole period of 1 year was fixed. He served 1 year in penal institutions between March 1977 and March 1978. The Minister ordered his deportation on 7 August 1978.

The fact of the conviction was not disputed, but two matters were raised in an attempt to deny the appellant's guilt. First, it was submitted that recent rulings by Torrington D.C.J. and Collins D.C.J. show that the applicant was not liable to conviction on the indictment presented at his trial; and secondly, the applicant deposed to his actual innocence of any involvement with the Colleambally plantation. The attempt to challenge the conviction in these ways was misconceived. The conviction may or may not be liable to be quashed, but until it is quashed, it remains valid "and proceedings which, although based upon a judgment, are brought to completion before its reversal are not avoided" (Commissioner for Railways (N.S.W.) v. Cavanough [1935] HCA 45; (1935) 53 CLR 220 at p.225). It would be unsatisfactory for this Tribunal to express a view as to whether the applicant's conviction is quashable. Whether an error of law or an error of fact is said to affect the conviction, neither the Minister nor this Tribunal can go behind the conviction and set the conviction at nought, as a passage from the speech of Viscount Simon L.C. in General Medical Council v. Spackman. [1943] A.C. 627 shows. There, the power of the Medical Council to erase the name of a medical practitioner from the register could be exercised upon fulfilment of either of two conditions - one, a criminal conviction, the other, infamous conduct. Here, the conditions of the Minister's deportation powers are comparable, for the Minister may act either under s.12 (on the ground of conviction) or under s.14 (on the ground of disqualifying conduct). In reference to s.29 of the Medical Act 1858(UK), his Lordship said at pp. 634,635:-

"That section draws a significant distinction between a case in which the impeached practitioner has been convicted of felony or misdemeanour and a case in which the allegation of infamous conduct is not connected with a criminal conviction. In the former case, the decision of the council is properly based on the fact of the conviction, and the practitioner cannot go behind it and endeavour to show that he was innocent of the charge and should have been acquitted."

It would be otherwise if his conduct, not the conviction, enlivened the Minister's power (see Ong Bak Hin v. General Medical Council [1956] 1 WLR 515 (PC); Ziems v. The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 at pp. 288,298). Although the Tribunal cannot go behind a conviction upon which a s.12 order is based, the significance of a conviction in the exercise of the discretion under s.12 will vary from case to case. It is therefore necessary to identify the conduct of which the alien has been found guilty. In the present case, for example, to say that the applicant was convicted of the supply of Indian hemp is not adequately to describe the conduct for which he was convicted. It is necessary to ascertain what: was the case made against him which must be taken to have been accepted by the jury in returning their verdict, and I shall presently refer to that case.

The conduct which may be considered by the Minister and by this Tribunal is not confined to the case made against him at the trial. It is inherent in the grant of a discretion to the Minister under s.12 of the Migration Act that a conviction by itself does not necessarily lead to the making of a deportation order, so that it is open to the Minister to consider other conduct in exercising his discretionary power conferred by s.12. Likewise, it is right for this Tribunal to consider the whole of the alien's conduct and circumstances. The enquiry into an alien offender's conduct calls for an approach similar to that required by the European Court of Justice when, in Reg. v. Bouchereau [1978] 1 Q.B. 732, it interpreted a Council Directive binding on member countries of the European Economic Community and affecting measures taken by them in deporting alien offenders. The Community's directive was said to require "the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which form the basis of the criminal conviction" (ibid., p.759).

When the Minister, or this Tribunal on review, goes beyond the conduct which founded the conviction in order to make an appraisal as to where the best interests of Australia lie, questions necessarily arise as to the manner in which the facts of the particular case are to be found. It is clear that this Tribunal must determine the facts upon the material before it, not upon the material before the Minister (Drake v. Minister for Immigration and Ethnic Affairs, Federal Court of Australia, 3 May 1979). But what degree of proof is required before facts will be found adversely to an applicant? These are facts which, if found against an applicant, may carry adverse consequences of the most serious kind. Although deportation is not itself a criminal punishment, the consequences of deportation may often be more destructive of the lives of the deportee and his family than the period of imprisonment to which he is sentenced. Before the Tribunal, the burden of proving the circumstances which warrant his deportation should be borne by the Minister who, in order to advance the best interests of Australia, would subject the applicant to deportation - a liability additional to the imprisonment which his conviction entailed.

In cases falling within s.12 the factors affecting deportation will consist in the deportee's conviction and in other conduct, in relevant circumstances and in the assessment of these facts. Together, the factors must show that the deportation of the alien is in the best interests of Australia. Some of the factors are provable phenonema, others are evaluations and prophecies. Evaluations and prophecies are not to be proved by evidence, but are to be left to the decision-maker who may, of course, be assisted by the opinions of others who have particular knowledge or skill in a relevant field. But at the end of the day the decision-maker must be persuaded that deportation is in the best interests of Australia, and where the consequences of deportation are grave, he will not be lightly persuaded (see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at p.362). Except in special cases (to which I later refer) the conclusion that deportation is in the best interests of Australia will depend upon adverse findings of provable facts, and before those findings are made, the decision-maker must be reasonably satisfied of the occurrence or existence of those facts (Rejfek v. McElroy [1965] HCA 46; (1965) 112 CLR 517 at p.519), The gravity of the consequences of deportation to a particular deportee does not demand that facts be proved beyond reasonable doubt, but the significance of an adverse finding to the deportee will obviously affect the ease or difficulty of persuading the decision-maker that the adverse finding should be made.

A more definitive approach appears to be taken by the United States Supreme Court in Woodby v. Immigration and Naturalization Service, 38 5 U.S. 276 where that Court held that the consequences of deportation are such as to require proof of adverse facts to be "clear, unequivocal, and convincing". The majority opinion was delivered by Stewart J. who said at p.286:

"The immediate hardship of deportation is often greater than that inflicted by denaturalization, which does not, immediately at least, result in expulsion from our shores. And many resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens.

We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true."

When an alien has been resident in this country for many years, when his roots are deep in Australia and the ties which bind him to Australia are strong, a clear case will be required to persuade the decision-maker that it is in the best interests of Australia to banish him from our shores. The facts of such a case, proved to the reasonable satisfaction of the decision-maker, are then evaluated to assess the risk which the presence of the alien poses to the Australian community's interests, and those facts are the foundation of the decision-maker's foresight of the risk which his presence will pose in the future. If provable facts are left unproved, evaluation and foresight are correspondingly less weighty, and the decision-maker is less likely to be persuaded that deportation is in the best interests of Australia. Proof is required where it may reasonably be expected, and deficiencies in proof are not to be supplemented by a harsh assessment of the unduly limited facts of which proof is given, or (except in special cases to which I later refer) by suspicion falling short of proof.

How are facts to be proved, and how is the sufficiency of proof to be determined when there are no rules of evidence binding upon either the Minister or the Tribunal? Section 33(1)(c) of the Administrative Appeals Tribunal Act provides that "the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate." Although the Tribunal is governed by statute in the approach which it must take in assessing the evidence, and the Minister is not, I do not know that the statute confines the Tribunal to an approach which is more restricted than the approach which the Minister might properly take in assessing the same evidence.

The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes C.J. said in - Consolidated Edison Co. v. National Labour Relations Board [1938] USSC 176; (305 U.S. 197 at p.229). To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeals Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at p.256:

"Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, 'bound by any rules of evidence.' Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice.' "

That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence. Diplock L.J. in Reg. v. Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 Q.B. 456 at p.488 said:

" These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue."

Lord Denning M.R. in T.A. Miller Ltd. v. Minister of Housing and Local Government [1968] 1 WLR 992 at p.995 said much the same:

"Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law."

and he repeated that observation in Kavanagh v. Chief Constable of Devon and Cornwall [1974] 1 Q.B. 624 at p.633. In the United States where considerable judicial attention has been given to fact finding by administrative tribunals (see Schwartz Administrative Law, Boston, 1976 paras. 115 et seq), substantially the same principle has been expressed. It was thought, at one time, that the Consolidated Edison judgment required that some legal proof had to be adduced, and that hearsay evidence alone could not support an adverse finding (see Schwartz, op.cit., para. 118). But in Richardson v. Perales, [1884] USSC 274; 402 US 389 at p.407 the Consolidated Edison case was construed in this way:

"The contrast the Chief Justice was drawing ... was not with material that would be deemed formally inadmissible in judicial proceedings but with material 'without a basis in evidence having rational probative force.' This was not a blanket rejection by the Court of administrative reliance on hearsay irrespective of reliability and probative value. The opposite was the case."

The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not. Starke J. said at pp. 249,250:

"The Appeal Tribunal can obtain information in any way it thinks best, always giving a fair opportunity to any party interested to meet that information; it is not obliged to obtain such independent medical opinion, for instance, upon oath, and whether cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal; it is not bound by any rules of evidence, and is authorized to act according to substantial justice and the merits of the case."

It will be necessary to return to his Honour's reference to cross-examination, but for the moment the relevance of his Honour's judgment is to be found in the procedural flexibility which it assures to Tribunals which are statutorily freed from the rules of evidence, though required to act upon material which is logically probative. As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay "has a wide scale of reliability" (1978, L.R.C. 29, p.35), and there is no reason why logically probative hearsay should not be given credence. However, the logical weaknesses of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.

In the present case, the Minister relied upon conduct apart from the conduct established by the applicant's conviction. It is therefore necessary to examine the proof of that other conduct, and to say whether I am persuaded that deportation of the applicant is in the best interests of Australia. But first the conviction should be examined, for that is the starting point of the case against the applicant.

The applicant's conviction followed upon a Drug Squad raid on a property at Colleambally on 10 November 1975. The applicant says that he went to Griffith for a christening on the day before and went out to the property in the company of the two brothers Agresta. The circumstances of the raid were described by the police officers who participated, and the police evidence must have been accepted by the jury in convicting the applicant and the others who were charged with the same offence. As the police arrived at the property they came first to a large caravan. A number of vehicles, including farm vehicles, were nearby. Several men, of whom the applicant was one, ran from the caravan through some bushland which concealed a plantation of Indian hemp, approximately 30 acres in area. Detective Senior Constable G.W. Ross gave evidence of apprehending the applicant. He said:

" I saw a number of plants growing in rows and each row was irrigated. As we neared the edge of the plantation I saw Luigi Pochi stand up in an area among the plants on the plantation itself. I stopped the utility near the edge of the plantation and as Drury and I alighted from the vehicle the accused crouched down and disappeared from view. Drury and I ran to the vicinity we had seen him and commenced searching. Shortly after I saw the accused lying in a trench. I approached him with Drury. I said to him, 'We are from the police, would you stand up please?' He stood up. I said, 'What is your name?' . He said, 'Luigi Pochi.' I said, 'Do you live here on the farm?'. He said, 'No, I live in Canberra but I live here when I work on the farm.'.

I indicated the plants. I said, 'Do you know what these are?'. He said, 'Marihuana.'. I said, 'I want you to understand you are under arrest. You are not obliged to say anything about the marihuana growing unless you wish as anything you say may later be given in evidence at court. Do you understand that?'. He said, 'I understand.'. I said, 'Have you been looking after the plants growing here?'. He said, 'Yes.'. I said, 'Where have all the other men gone?'. He said, 'I don't know. '"

Before the police took the applicant and others to the Griffith police station, Detective Jenkins spoke to the applicant. Ross deposed to that conversation:

"There Jenkins said to him, 'Do you know who owns this farm?'. He said, 'Len Gambacorta.'. Jenkins said, 'Do you know a man named Antonio Katarzis?'. He said, 'No.'. Jenkins said, 'Do you know what was to happen to the marihuana when it was ready?'. He said, 'No.'. Jenkins said, 'Were you working here?'. He said, 'Yes.'. Jenkins said, 'Doing what?'. He said. 'Chip weeds and look after the marihuana.'. Jenkins said, 'Were you to be paid any money for looking after the marihuana?'. He said, 'Yes.'.

At the trial the applicant made an unsworn statement which the trial judge recounted verbatim in his summing-up to the jury. The applicant said, inter alia:

"The Christening was to be at Griffith Catholic Church. On Friday I saw Pat Agresta and I told him I would come to the Christening. He told me when I been here in Griffith to go to see him. On Sunday I went to his place and I told him I never go home before Tuesday. He asked me if I want to go with him to chop parsnips; I never done this sort of work before. I like the idea to go for one day to the country and I went with him.

On Monday we went to Colleambally and we stop where there was caravan there. I was wearing slipon shoes and casual gear, not working clothes. We went with Pat to the patch. After couple of hours my hands was blistered and sore and I could not go any further. I said I could not go any more, there was blood coming. We come back to the caravan. We was there to prepare some lunch and I sit down there somewhere. Joe said, 'Run because the police are coming.' I never run for the first time. He pushed me again. He said, 'If you no run we are all in trouble because I grow marihuana in this paddock.' I get a fright and I run very fast. I went through the timber and I saw little bit clear and I saw the crop the first time. I try to run fast to pass it through the other side of the timber. I been frightened lying there by myself. After a little while I put my hands up to see if the men are coming for me because I thought I was in trouble. I saw the men to come, and I lie down again. They come to me. They told me, 'We are police,' and arrest me. They take me back to the police vehicle and Joe Agresta was there and Pat come up a little bit. They searched me and they find nothing on me; no marihuana seeds was mentioned or anything like that. They ask me my name and address. I give to them, that is all the conversation, nothing else they ask me. "

Detective Jenkins gave evidence before me as to the state of the parsnip patch:

"---To my observations they appeared to be in a wilted condition and lacking water. There were some weeds but they were not completely overgrown but they gave me the impression that they were slightly unkempt in lack of water.

Did you observe any signs of the weeds having been recently chopped or chipped?---No, I did not."

and he compared the state of the marihuana plantation:

"---From observations of the Indian hemp it was planted in rows and the irrigation channels between the plants were still very wet. The plants appeared to have been well looked after and well watered."

The applicant concluded his statement to the District Court by saying, "I never tell the police I have something to do with the crop. I never saw this marihuana before in my life. I am not guilty of this offence." The jury rejected the applicant's statement. After conviction the learned trial judge passed sentence. He said:

" It is well known that any participation in growing Indian hemp will involve serving a gaol sentence if detected.

It is very sad to see men otherwise of good character fall for the temptation of making big money quickly. But if such men did not fall for this temptation the drug problem would be so much reduced. The maximum penalty provided by the law is ten years imprisonment with hard labour. "

He then sentenced Guiseppe Agresta to five years imprisonment and fixed a non-parole period of two years before proceeding to sentence Pasquale Agresta and the applicant. He said to the applicant;

"Luigi Pochi, your participation was also less. I sentence you to two years imprisonment with hard labour, and I fix a non-parole period of one year."

It is clear that the jury's verdict carries the finding that the applicant was knowingly involved in the cultivation of a large quantity of Indian hemp. The size of the plantation demonstrates the magnitude of the undertaking, and the evidence before me of Detective Jenkins showed that the venture of growing marihuana at, and distributing marihuana from, Colleambally had been going on for some time, and was carefully planned to conceal the identity of those who were involved. But the conviction itself goes no further than establishing that the applicant was involved in some culpable way, perhaps as a farm labourer assisting in the cultivation of the marihuana crop (though clearly he could not have been so engaged for long). Upon the evidence adduced at the trial the conviction does not demonstrate any entrepreneurial involvement of the applicant in the venture.

Standing alone, the conviction does not establish conduct of such gravity as to demonstrate that it is in the best interests of Australia that the applicant - an Australian resident of many years' standing, with a good record of useful and innocent work - should be deported. I note the Ministerial statement of policy and the Minister's intimation that he is "less disposed to exercise [his] discretion not to deport than would otherwise be the case in respect of people whose offences involved injury to or corruption of young people" and that the Minister "is particularly concerned where ... trafficking in or distribution of drugs has been involved." Although the statement of Ministerial policy does not bind this Tribunal as to its view of a particular case (see Drake v. Minister for Immigration and Ethnic Affairs, supra), I am assisted by this statement of the Minister's views and I would agree with them as views appropriate for application in the present case. But those views, applying them to the facts revealed by the conviction alone, do not support a deportation order. An alien who intends to be naturalized, who has made Australia his permanent home, and who is a useful member of an Australian community, is an asset to Australia: an asset who should not be lost by a conviction for an offence which is not shown to be, and which the trial judge does not regard as, a grave affront to our society. The conviction says nothing of an entrepreneurial role with respect to the Colleambally plantation, and it says nothing as to any involvement in other plantations, or in marihuana trading. But it is nonetheless a conviction which enlivens the Minister's power and which therefore opens up consideration of other evidence - not called at the trial - relating to the applicant's conduct.

The respondent sought to show that the applicant's involvement in the growing of marihuana and in marihuana trading was far more than appeared from the evidence at his trial. The further evidence tendered before the Tribunal to implicate the applicant fell into two categories: first, evidence relating to his and his wife's contribution between June and August 1975 of approximately $117,000 to the capital of a partnership known as Vignali Wines, a contribution that was used to meet nearly half of the cost of the partnership's premises at Fyshwick; and second, certain evidence tendered in camera in order to make good an allegation (made in a public hearing) that he and other persons who were immigrants from Plati or towns nearby were involved in the growing of marihuana in large quantities: 30 acres at Colleambally, 4 acres at Leppington, 15 acres at Euston, 5 acres at Taree, and significant quantities at Loxton and Port Pirie in South Australia.

The evidence as to the contribution of $117,000 was tendered because, as the applicant and his wife did not have assets worth that amount, the contribution was said to warrant an inference that the major part of these funds must have been the proceeds of the applicant's involvement in commerce in marihuana. The applicant, on the other hand, set out to show that the sources of the amounts contributed were innocent: the money was said to come from loans which he obtained from family or friends, from winnings on bets which he placed with a bookmaker, from the proceeds of the sale of his business and from the proceeds of the sale of the house at Narrabundah (which was applied in part to complete the repayment of a bridging advance from a bank).

To place the Vignali Wines venture in context, it is necessary to go back to the tailoring business which the applicant had carried on. He suffered from sinus trouble, which was aggravated by tailoring, and he wanted to quit the business. His brother-in-law, Antonio Sergi, was interested in a winery at Griffith, and he suggested that the Pochis should open a liquor business in Canberra. Sergi agreed to take a quarter share and procured a Robert Trimboli to take a quarter share in the venture. Mr. and Mrs. Pochi were to take a half share. An auction sale of premises at Fyshwick which were thought to be suitable was held in late May or early June 19 75. The property was passed in, but the partners in the venture offered $235,000 for the property after the auction and this offer was accepted. A contract dated 17 June 19 75 was signed. Antonio Sergi contributed $60,000. Robert Trimboli contributed $60,000 in the first instance and then contributed an additional amount to fit out the internal part of the premises and to provide refrigeration. A mortgage was obtained from the Bank of New South Wales, Woden Plaza branch, of $30,000, and this was to be expended on stock. Antonio Sergi also contributed stock from the Griffith winery. When the venture was first under contemplation Mr. and Mrs. Pochi had few liquid assets, yet they made the following payments in the course of completing the purchase of the premises:

(a)

On 4 June 1975 $23,500 being the deposit

(b)

On 16 July 1975 $2,350 being stamp duty on the contract

(c)

On 30 July 1975 $31,900 being part balance purchase price

(d)

On 12 August 1975 $43,430.06 being part balance purchase price

(e)

and a further $16,000 being part balance purchase price

The sources of the funds used in making the payments were traced by those assisting the New South Wales Royal Commission into Drugs, in accordance with information given or confirmed by Mr. and Mrs. Pochi:

(a) The deposit of $23,500 paid on 4 June 1975 to Fyshwick Real Estate was funded by -

Cash loan of $15,000 made on 1 June 1975 by Francesco Perri, a friend who lives in Adelaide;

Cash loan of $5,000 made on 3 June 1975 by Giacomo Madaffari, a man who has now retired to Italy and who knew the applicant "from when he was a mere child".

Cash deposit of $1,000 made on 2 June 1975, perhaps part of a loan of $5,000 made on 17 March 1975 by Giovanni Ciuffetelli, the applicant's brother-in-law.

Cheque for $2,000 drawn by Brian Crawford, a bookmaker, and banked on 2 June 1975.

(b) The payment of $2,350 stamp duty on 16 July was funded by -

5. Cheque for $3,480 drawn by Brian Crawford, bookmaker, and banked on 27 June 1975.

(c) The $31,900, part of the balance of the purchase price, which was deposited to the credit of the trust account of Messrs. McPhillamy, Cummins and Gibson, solicitors, on 30 July 1975, was funded by loans made by a number of relatives who purchased bank cheques for the amounts respectively lent. The bank cheques were -

for $9,000 purchased on 23 July 1975 by Serafina Pochi, the applicant's mother;

for $6,000 purchased on 23 July 1975 by Francesco Stalteri, the applicant's brother-in-law;

for $8,000 purchased on 2 3 July 19 75 by Antonio Stalteri, another brother-in-law;

for $4,000 purchased on 24 July 1975 by Rocco Musitano, another brother-in-law;

for $1,000 purchased on 25 July 19 75 by Guiseppina Zappia, the applicant's sister;

for $2,000 purchased on 25 July 1975 by Antonio Zappia, Guiseppina'a husband;

for $1,000, purchased on 25 July 19 75 by Dominic Zappia, a nephew of the applicant, son of Guiseppina and Antonio Zappia.

(d) The $43,430.06 part of the balance of the purchase price, deposited to the credit of the same solicitors' trust account on 12 August was funded by -

A cash deposit of $4,000 made by the applicant to the credit of Mr. and Mrs. Pochi's savings account with the Commercial Savings Bank on 22 July 1975.

A cheque for $9,588, deposited to the credit of the same account on 29 July 1975, drawn by Brian Crawford, bookmaker.

A bank cheque for $8,000 purchased on 6 August 1975 on behalf of Bruno Pochi, the applicant's brother, as a loan to Mr. and Mrs. Pochi.

A cheque for $6,680.06 drawn by Mr. and Mrs. Pochi on their C.B.A. account on 12 August, the account then being in sufficient credit because of deposits representing the sale of trading stock, including $3,000 representing the proceeds of the closing down sale when the applicant disposed of his shop and the tailoring business carried on in that shop.

A bridging loan of $15,000 made by the C.B.A. pending sale of the Narrabundah house. The funds used to repay the loan are referred to in items 18, 19 and 20 below.

(e) The final $16,000 was funded by appropriating the proceeds of the sale of the applicant's tailoring shop which he sold to a Mrs. Pillans for $16,000. The purchase price was paid to the applicant by effecting book entries in the trust account of the solicitors who acted for vendor and purchaser of the tailor's shop, and who applied those moneys to the purchase price of the Fyshwick premises.

The repayment of the C.B.A. loan referred to in item 17 was made by a payment of $9,100 on 12 January 1976 and $5,900 on 15 July 1976. These payments were funded by -

Appropriating part of the proceeds of a cheque for $3,450 (deposited on 12 December 1975 to the C.B.A. trading account), drawn by Brian Crawford, bookmaker.

Depositing to the credit of the C.B.A. loan account on 12 January 1976 a cheque for $6,480 drawn by Brian Crawford, bookmaker.

Appropriating $5,900, part of the proceeds of the sale of the Narrabundah house, when those proceeds were received on 15 July 1976.

It may thus be seen that the contribution to the purchase of the Vignali Wines premises was funded by loans of the order of $61,000 made by close relatives or friends, cash of $5,000, betting wins of the order of $11,500, a bank loan of $15,000, savings or business income of the order of $6,000, and proceeds of sale of the shop and stock of $19,000.

I do not believe much of the applicant's account of assembling this finance, partly because I do not believe some of the accounts as to the particular items, and partly because I do not believe that a commitment to the payment of $117,000 or thereabouts would have been made prior to 4 June 1975 without knowing that the money was available.

Francesco Perri (Item 1), who lent $15,000 on 1 June, was not called to give evidence. He lives in Adelaide. The applicant said that Perri had given him $15,000 in cash while he was in Canberra on holidays from Adelaide. Yet the applicant recounted the conversation with Perri in Canberra:

"Perri said 'Look you got me in the right spot, I have about that much at home, not with me. With me I have may be $500 or $600 but at home I have that much. If you need it you let me know and we give it to you.' 'How much you have?' He say, '$15,000'."

There appears to be an inconsistency between the assertion that the money was delivered to Pochi in cash and the statement that $15,000 was at home (which, in the context, means Adelaide) when the request for the loan was made.

Mr. Madaffari (Item 2), who lent $5,000, was an elderly Italian, who had been employed in Canberra as a labourer and gardener. He had allegedly collected the $5,000 in cash in his house to take back to Italy. Mr. Madaffari's son gave evidence and asserted that none of the moneys lent had been repaid. It is an extraordinary act of generosity on the part of Mr. Madaffari to part with and to lose what one suspects must be a major segment of his life's savings.

The cash deposit of $1,000 (Item 3) was not in fact traced to the loan of $5,000 said to have been made by Giovanni Ciuffetelli (Item 3). The $1,000 was in cash, yet Mr. and Mrs. Pochi had bank accounts which were used for business and private purposes. Ciuffetelli said that he made the loan because the applicant "needed the money for restocking the shop ... the tailor shop". But when Ciuffetelli was interviewed on 10 November 1977 he gave a statement that "Luigi asked me if I could lend him $5,000 so that he could buy a business. He told me that he had to stop working as a tailor because it was affecting his eyes or nose. He did not tell me what type of business he was contemplating." Later in that statement, however, he said "I am not too sure if I gave Luigi the cheque to carry out renovations on his tailor shop or to buy a business." It may be that Mr. Ciuffetelli's memory was defective, but if he had lent $5,000 of his own funds and he has not been repaid, it is surprising that he does not remember the purpose for which the loan was sought or given. In particular, if the loan was given for the purpose of restocking the tailor shop, it is surprising that neither repayment nor renegotiation of the loan took place when the tailor shop was sold.

The loan of $9,900 (Item 6) by the applicant's parents was said to be savings kept in cash in the family home, evidently for fear that the banking of those moneys might affect the parents' entitlement to a pension. Mrs. Pochi senior, in a statement dated 13 October 1977 said "I had it hidden all over the house". Her possession of $9,900 was necessarily revealed, however, when Mrs. Pochi senior signed a requisition for a bank cheque and deposited the funds to cover it. On 10 August 1976, shortly after the opening of Vignali Wines, Mr. and Mrs. Pochi senior signed a document which is described as a deed of release saying that they released the indebtedness "in consideration of natural love and affection". If aged parents had lent their life savings to the applicant, it is surprising that the applicant would have either sought or been prepared to receive the benefit of a release of debt within so short a time of undertaking the business venture which his parents had so generously financed.

Francesco and Rosa Stalteri (Item 7) had a Commonwealth savings bank account into which they had deposited varying amounts of money between March 1969 and February 1974. Francesco had been employed as a gardener and Rosa sewed curtains for a furniture store. Apart from a withdrawal of $1,850 on 21 November 1974 there were no operations on this bank account between 7 February 1974 and 23 July 1975. On the latter date the account stood in credit in the amount of $5,607.61. According to Francesco Stalteri the applicant had approached him for a loan and he agreed to give one. He agreed to lend $6,000. Francesco and Rosa went to the bank on 2 3 July 1975, and the bank book records a deposit of $400 that day followed by a withdrawal of $6,000 leaving a credit balance of $7.61. Francesco says he took the $6,000 in cash and gave it to the applicant, but it is clear that the $6,000 was used for the purchase of a bank cheque which was issued by the same savings bank branch. $2,000 was allegedly repaid, and an entry dated 23 December 1977 accords with that statement. There is nothing inherently incredible in this account, unless one regards the lending of the whole of the family's life savings as an incredible act of generosity, a proposition referred to later in these reasons.

The loan of $8,000 by Antonio Stalteri (Item 8) represented the proceeds of the monetary presents given by wedding guests at the wedding of Antonio's son Domenico to Anna Madaffari on 12 July 1975 at Griffith. The wedding was attended by a large number of people who, in a fashion customary among southern Italians, gave money at the wedding reception. The money was taken home and was kept in the house from 12 July until 23 July when it was used to purchase a bank cheque issued by a Commonwealth Savings Bank in Canberra. The total received at the wedding was $7,538. Although Antonio Stalteri at one time denied that he had made any contribution towards the $8,000 that was lent to the applicant, it clearly appeared that the difference between the amount collected at the wedding and the $8,000 was $500 given by Mr. and Mrs. Antonio Stalteri as a wedding present. Antonio says he gave the amount in cash to the applicant, but the truth is that Mrs. Stalteri bought the bank cheque in Canberra. Antonio Stalteri claimed that his paternal authority was sufficient to justify his disposal of a fund which apparently represents gifts to his son and daughter-in-law. He said, "I am master, and Dominic does not have anything to do with the money." It does appear that custom would entitle Antonio Stalteri to reimbursement for the money that he had spent on the wedding, but Domenic thought he was entitled to receive the excess over the cost of the wedding, though he agrees that he accepted the decision of his parents to lend the whole of the $8,000 to the applicant. It seems a curious method of giving a $500 wedding present for the parents to give an amount in cash which is to be refunded to them to defray the expenditure which they have made in connection with the wedding. None of the $8,000 has been repaid either to the Stalteri parents or to Dominic Stalteri,

Rocco Musitano (Item 9) is another brother-in-law. He was saving up to make alterations to his house. Although he had a bank account to the credit of which he deposited small sums of money quite regularly both before and after 24 July 1975, he says that he kept a large sum in cash at home. As he was able to lend $4,000 on 24 July 1975, of which only $900 was drawn out of the bank account, he must have had $3,100 at home in cash - a proposition which appears to be inconsistent with his banking habits at the time. His loan of the funds which he was saving for a purpose was another act of considerable generosity.

Guiseppina Zappia (Item 10) took $1,000 out of her savings bank account on 25 July and bought a bank cheque with it. On 13 August 1975 she deposited $1,000 to the credit of that account, but after that time her deposits did not exceed $200, She says that the $1,000 which she deposited was cash which she had in the home, and that she did not wish her brother to know that she had that money at home. She says that if she had money she would be willing to lend it to her brother, though she lent only $1,000 out of $2,905 that she had available at the time of the lending. I do not believe this story. Her husband, Antonio Zappia, (Item 11) lent $2,000 drawn out of his savings bank account. I know nothing about the circumstances of this transaction. Dominic Zappia, their son, (Item 12) lent $1,000, and that was repaid by a cheque drawn by Mrs. Pochi in the latter half of 1977. There are no circumstances of suspicion demonstrated with respect to this transaction.

A deposit of $4,000 to the credit of Mr. and Mrs. Pochi's savings account was made in cash on 22 July 1975 (Item 13). The investigators assisting the New South Wales Royal Commission suspected that this deposit was related to a proposal which the applicant put to the purchaser of his tailoring shop, suggesting that the purchase price be increased by $4,000 on his undertaking to give the purchaser $4,000. The proposal was withdrawn by the applicant, on legal advice. One may suspect that the $4,000 was held against the possibility of using it in the way proposed, but there is no evidence to connect the deposit with the proposal. This cash deposit is unexplained. It was not cash withdrawn from Mr. and Mrs. Pochi's trading account. It seems unlikely that this sum would have represented takings from the business, for the trading account was used for that purpose. One wonders why it was necessary to borrow $4,000 from Rocco Musitano on 24 July, or $4,000 from the Zappia family on 25 July, when the applicant had deposited $4,000 to the credit of his savings account on 22 July.

Bruno Pochi agreed to lend $8,000 (Item 15) and his wife Catherine withdrew that sum from her bank account on 6 August 19 75 to purchase the bank cheque. Her account was in modest credit prior to 24 July 1975 when Bruno Pochi deposited $4,000 in cash, and he explained how he came by that cash amount. Bruno Pochi's house had been burnt down a short time before and he says that many people who owed him money (he was a carpenter and joiner) paid him what they owed because they knew that he must be in need of money. Although he had a receipt book, he says that he did not issue a receipt for any of the payments made to him which were deposited to the credit of his wife's account. A further large deposit of $5,405 was made on 30 July 1975. This was a payment by an insurance company under a fire policy, consequent upon the fire damage to the contents of the house. (The insurer also reinstated the part of the house that was burnt). These two cheques funded the loan of $8,000 made on 6 August. It seems curious that Bruno Pochi would have lent this sum at a time when the misfortune of the fire had left him "without anything - actually without any clothes at all, and the people who approached me when they knew the house had burnt down, asked me if I needed any money because some of them owed me money." However, Bruno Pochi says that the applicant made him some suits, friends and relatives helped with furniture and clothes, and his father (who had shortly before lent the applicant $9,900) gave a refrigerator to Bruno. Further, Bruno Pochi says that he had some money in his savings account and there was something left in Mrs. Pochi's cheque account, so he could afford to lend $8,000. Even if one accepts his ability to lend $8,000, I do not believe the account of the $4,000 deposited on 24 July.

The applicant's family and his friends who come from Plati are clearly bound to a close and trusting relationship. That relationship has an ambiguous significance: it may explain the seemingly extraordinary generosity of the lenders, or it may explain their willingness to assist the applicant to clothe the funds which he intended to use with a false appearance. In some cases, the former explanation appears the more likely, in others the latter. It is not necessary to decide which explanation fits each transaction, for the question is whether, in all the circumstances, one may infer that the applicant had funds which represented the proceeds of his activities in commerce in marihuana. That inference depends more upon the totality of the circumstances than upon an individual transaction

The fortuitous windfall of betting wins made a significant difference to the applicant's financial position in mid-1975. The first cheque drawn by his bookmaker, Crawford, was for $2,000 (Item 4), and represented winnings on 28 May 1975. It was deposited two days before the cheque for the deposit on the Fyshwick premises was drawn. The second cheque funded the payment of the stamp duty (Item 5). That cheque (for $3,480) represented winnings on 14 and 16 June 19 75. The cheque for the largest amount, $9,588 (Item 14), represented wins on 26 July 1975. At a meeting in August 1975 the applicant lost a total of $1,100 in six losing bets. But his winning run returned on six betting days between 15 November 1975 and 27 December 1975, and his winnings were paid in the two cheques for $3,450 (Item 18) and $6,480 (Item 19), which were used to repay in part the advance made by the Commercial Bank. It seems that the bridging advance made by the Commercial Bank was for six months, and it was fortunate that the betting wins at the end of 1975 could be used to reduce the amount of the liability to the bank at that time. From the bank's documents, the $9,100 paid in to reduce the bank advance on 12 January 1976 came "from outside sources". The applicant "requested extension of reduced facility for a further 3 months" and on 12 January 1976 the manager approved that arrangement. In fact, the balance of the account was not paid out until the proceeds of the Narrabundah house were received (Item 20).

The history of the applicant's betting with Crawford was remarkable. His credit betting opened on 18 January 1975 when he lost $1,400. Thereafter, his winning days produced funds which were used to assist in the payment of the deposit, the payment of the stamp duty and the balance of the purchase price. He then had a losing day in August and, at the time when the first period of the bank bridging advance was expiring, he had another winning run. His betting with Crawford ceased in April of 1976. Although he was not a regular race-goer, he won $28,500 on 26 bets, and lost only 32 bets which cost him $4,910. Although the bookmaking records of Mr. Crawford appear faultless, the applicant's run of luck on the racecourse is so surprising as to excite scepticism if not incredulity.

Loans made with remarkable generosity, a surprising series of betting wins, and some cash deposits of unknown origin provided the major part of the contribution made by Mr. and Mrs. Pochi to the purchase of the Vignali Wines premises. Without those sources of funds, it is clear that the applicant could not have participated in the venture. When the venture was first proposed, the applicant-saw his bank manager at the Hobart Place branch of the Commercial Bank of Australia. He wanted $80,000 or $90,000. The bank manager said: "It is a very bad time for the bank to give money out". The applicant then approached the • Bank of New South Wales, and according to the applicant the manager of the Fyshwick branch "treated me like I was joking and he say plenty of time for you to open business and all this and he just opened the door and kicked me away...". But the applicant says he had assurances of assistance from members of the family before the auction sale of the Fyshwick premises. The applicant's recollection as to the amount of any promised sum before the auction was very vague: "Some of them say how much they can help me. Some cannot tell me how much they can help ... like somebody tell me $3,000, $1,000 then they give me $2,000". But some "like Francesco Stalteri told me how much he give". And the Zappias did also. But he says that he did not count on the $8,000 received from Antonio Stalteri nor the exact amount lent by Rocco Musitano. He says that his brother Bruno promised him about four or five thousand dollars, though his house was not then burnt down. In truth, apart from using the relatively small amount in his current account at the time, it was not until he won $2,000 at the races on 28 May and received $15,000 from Francesco Perri on 1 June that he had a prospect of even paying the deposit, which was paid on 4 June. Madaffari's $5,000 was received on 3 June and the next significant banking was from another win which was banked on 2 7 June. Antonio Stalteri's $8,000 could not have been relied on in advance of the wedding on 12 July; Bruno Pochi could not have been relied upon before his house burnt down; Francesco Stalteri needed to deposit $400 in cash before he could lend $6,000 on 23 July and the betting wins of the July meeting had to be forthcoming in order to meet the final contribution to the purchase price which was deposited to the credit of the solicitor's trust account on 12 August. The coincidence between the applicant's need for funds at particular times, and the availability of those funds at those times from sources which could not have been guaranteed in advance raises the questions whether the applicant must have had another secure but clandestine source of funds before he undertook the commitment, and whether, if he had such a source, he used the lenders and the bookmaker or some of them to channel the clandestine funds into the venture of Vignali Wines. The evidence is circumstantial but circumstantial evidence can be logically probative, as Knox C.J. and Dixon J. Said in Morgan v. Babcock & Wilcox Ltd. [1929] HCA 25; (1929) 43 CLR 163, The very admissibility of circumstantial evidence depends upon the probative value of the circumstances sought to be proved. Their Honours said (at p.173):

"The question involved largely depends upon the degree to which coincidence of events and circumstances warrants a belief in their causal connection. An examination of hypotheses logically consistent with proved facts is the received method of testing their sufficiency to establish the conclusion. In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved."

It would contradict human experience if Luigi Pochi assumed a large commitment without adequate assurances that he could meet it, and then met the commitment in full by paying the instalments expected of him at the proper time, obtained sufficient funds to meet each of those instalments by extraordinarily lucky and well-timed racing wins, and received loans made with extraordinary generosity by friends and relatives who happened to have large sums of cash in their hands or who happened to obtain large sums in time to lend them. It is more probable that Luigi Pochi had access to funds of a large but unknown amount at the time when he committed himself to the purchase of the premises at Fyshwick, and that he did not wish the existence or origin of those funds to come to light.

But can it be inferred that those funds were the applicant's share of the proceeds of marihuana trading? I think not. There is no evidence to connect the applicant with marihuana prior to his arrest in November 1975. It is unknown whether the clandestine funds, whatever their source, belonged to the applicant. There is an indication (but no more) in a bank manager's notes that the funds used to acquire the Fyshwick premises were furnished by the Sergi family: the applicant advised his bank manager he required assistance "with the purchase of a $30,000 share in wine wholesale/retail business, recently purchased by the Sergi family...". However, there is no evidence which satisfactorily establishes the source of the clandestine funds, and one is left to speculate whence they were derived. It was agreed that the history of Vignali Wines trading (which ended in the closure of the business) contained nothing which would assist me in determining the question before the Tribunal.

A circumstance which strengthens the case against the applicant is the payment by Mrs. Pochi in May 1977 of one-fifth ($7,000) of the aggregate costs of the defence of the five persons who were charged as a result of the Colleambally raid. The applicant says he knew nothing of this until after the payment was made, and that he had anticipated that Guiseppe Agresta would pay the costs. Although Guiseppe and Pasquale Agresta and their respective spouses were discharged from bankruptcy only in January 1977, it appears that Guiseppe Agresta paid the whole of the costs in cash towards the end of the trial, and that Mrs. Guiseppe Agresta subsequently applied to Mrs. Pochi to be reimbursed the share which had been apportioned to the applicant. Mr. Mackenzie, the solicitor who acted for all accused, said that he "apportioned it only on the basis that there were five accused and [he] believed that they should all pay an equal amount". He also instructed the same counsel on behalf of the applicant and the two Agrestas. If the applicant were not involved with the Agrestas in the venture, and a fortiori if (as he maintained) he were innocently chipping parsnips on the day of the raid, it is curious that his representation betokened no conflict of interest with the Agrestas, and that his contribution to costs was equal to theirs. Although these circumstances deepen the suspicion that the applicant was involved as an entrepreneur in the Colleambally plantation, they do not prove that involvement.

In order to strengthen the case against the applicant, the respondent called Detective Senior Constable R.A. Jenkins to give evidence. Detective Jenkins is an experienced officer of the New South Wales police force who served with the New South Wales Drug Squad from 1970 to 1977 and who performed duty with the New South Wales Royal Commission into Drugs for some 15 months. He gave me certain information in a hearing from which the public and the applicant were excluded. Though the applicant's legal advisers were present at this hearing, they were prohibited from disclosing to the applicant the evidence then given.

Section 35(2) of the Administrative Appeals Tribunal Act confers the power to exclude the public and an applicant from a hearing in which evidence is to be given against him. It provides:

"(2) Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order -

(a)

direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present;

(b)

give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal, in relation to the proceeding. "

To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s.35(3)) to "take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be in public." This is a principle which is binding upon courts of justice (see R. v. Tait, Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained. It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of administrative power, for administration has hitherto been a cloistered process (McPherson v. McPherson [1936] A.C. 177 at p.200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.

Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal. In The Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 CLR 383 at pp. 395,396 Dixon C.J. and Webb J. said:

"For it is a deep-rooted principle of the law that before any one can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard. In Cooper v. Wandsworth Board of Works ((1863) [1863] EngR 424; 14 CB(NS) 180) Byles J. said that a long course of authority established 'that, although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature' ((1863) 14 CB(NS) at p.194)... The general principle has been restated in this Court with a citation of authority in Delta Properties Pty. Ltd. v. Brisbane City Council ((1955) [1955] HCA 51; 95 CLR 11, at p.18). It is hardly necessary to add that its application to proceedings in the established courts is a matter of course. But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. "

(See also Kanda v. Government of Malaya [1962] UKPC 2; [1962] A.C. 322, at p.335 et seq., Shareef v. Commissioner of Registration of Indian and Pakistani Residents [1966] A.C. 47 at p.61). In T.A. Miller Ltd. v. Minister of Housing and Local Government (1968) 1 WLR 992, Lord Denning M.R. at p.995 insisted that exemption from cross-examination upon evidence before a tribunal can be justified only if the affected party nevertheless has "a fair opportunity of commenting on it and of contradicting it". There are, however, exceptions to the general rule which requires a party to have a fair opportunity of meeting the case against him - exceptions of varying content turning upon a variety of circumstances and statutory provisions. The exceptions were referred to by Kitto J. in Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [1963] HCA 41; (1962-1963) 113 CLR 475 at pp. 503,504:

"And notwithstanding what Lord Loreburn said in Board of Education v. Rice ([1911] A.C. 179) about 'always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view' ([1911] A.C., at p.182), the books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin ([1963] 2 WLR 935, at p.947). As Tucker L.J. said in Russell v. Duke of Norfolk ([1949] 1 All ER 109, in a passage approved by the Privy Council in University of Ceylon v. Fernando ([1960] 1 All ER 631, at p.637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: 'the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth' ([1949] 1 All ER, at p.118). What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

And in Salemi v. Minister for Immigration and Ethnic Affairs [1977] HCA 26; (1977) 14 ALR 1, Gibbs J. said at p.19:

" The question whether the principles of natural justice must be applied, and if so what those principles require, depends on the circumstances of each case. In the case of a statutory power, the question will depend on the true construction of the statutory provision in light of the common law principles (cf Durayappah v. Fernando ([1967] 2 AC at 350).

In Durayappah v. Fernando, Lord Upjohn, delivering the reasons of the Privy Council, said ([1967] 2 AC at 349) that 'there are three matters which must always be borne in mind when considering whether the principle should be applied or not'. He went on (at 349): 'These three matters are; first, what is the nature of the property, the office held, status enjoyed or services to be performed by the complainant of injustice. Secondly, in what circumstances or upon what occasions is the person claiming to be entitled to exercise the measure of control entitled to intervene. Thirdly, when a right to intervene is proved, what sanctions in fact is the latter entitled to impose upon the other. '

There may, of course, be other matters that will be relevant in deciding whether the principles apply: for example, the nature of the body on which the power is conferred, the language in which the power is conferred, and the presence in the statute of provisions enabling the exercise of the power to be reviewed."

In the ordinary exercise of this Tribunal's jurisdiction, the Tribunal is required by its statute (s.36(4)) to apply the principle that the parties "should be made aware of all relevant matters", and that is a principle from which the Tribunal departs with reluctance when it is considering the deportation of an alien resident, whose right to remain in Australia is revoked by a deportation order. Such a person is prima facie entitled to a full hearing of his case, and to the protection which such a hearing is designed to give (Reg. v. Immigration Tribunal, Ex parte Mehmet (1977) 1 WLR 795 at pp.804,805; Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149 at p.173; and cf. R. v. Minister for Immigration and Ethnic Affairs: Ex parte Ratu [1977] HCA 35; (1977) 14 ALR 317 at p.330). An alien resident is not accorded the protection to which he is prima facie entitled when he is denied access to the case made against him.

Yet the powers conferred upon this Tribunal by s.35(2) are not intended to lie dormant - they are there to be exercised, albeit sparingly. The purpose of their exercise is to secure to the Tribunal the availability of as much relevant information as possible, without violating the confidentiality which a party, a witness or the public is properly entitled to preserve (though a proper entitlement to confidentiality is not lightly established). A court may be constrained to violate that confidentiality in order to conduct its proceedings in public; but the Tribunal's powers are intended to facilitate the flow of relevant information to it, and if the exclusion of the public or even of a party is essential to preserve the proper confidentiality of the information needed to determine the application, that is a price which has to be paid, however reluctantly.

An order excluding the public may be justified more readily than an order excluding a party, but strict criteria govern the making of such an order. There must appear a real possibility of doing injustice to, or inflicting a serious disadvantage upon, a party, a witness or a person giving information if the proceedings were in public; or it must clearly appear that publication of the proceedings would be contrary to the public interest; or it must appear that the information to be given in the proceedings is of a kind described by s.36 (though in the last case, it is relevant that the Attorney-General has not given a certificate under that section). Where it is contended that publication of the proceedings would be contrary to the public interest, it is difficult to envisage a case justifying exclusion of the public which a court would not deal with by refusing to admit the evidence: this class of case is a narrow one. Where the publicity which traditionally marks curial proceedings may inhibit the production of evidence or lead to its rejection, the power conferred upon the Tribunal by s.35(2) authorizes it to remove those impediments to the receipt of information. Yet the power is conferred in order to do justice in exceptional cases - that is to say, where "the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public" cannot be applied. Some of these exceptional cases are statutorily defined (see, for example, the Insurance Act, 1973, s.63(14)).

To exclude a party, a further criterion must be satisfied. As it must appear that the exclusion of the party is essential to preserve the proper confidentiality of the information needed to determine the application, it is necessary to show that the information is of such importance and cogency that justice is more likely to be done by receiving the information in confidence, and denying the party access to it, than by refusing an order to exclude the party. This criterion is not easy to satisfy though it is possible to do so. The criterion is not easy to satisfy because an applicant's interest in a hearing fair to him can be over-ridden only by another and superior interest, and then only when reconciliation of the two interests is impossible. But the criterion may be satisfied when a public interest in confidentiality clearly appears. In R. v. Home Secretary, Ex parte Hosenball [1977] 1 WLR 766, Lord Denning M.R. acknowledged that the public interest in confidentiality can be paramount. He said at p.782:

"When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice."

In the present case, the public interest in protecting the confidentiality of the sources of information obtained to combat crime conflicted with the interests of the applicant in meeting the case made against him. The public interest prevailed, as it did in Hosenball's case, wherein Geoffrey Lane L.J. said (at p.784):

"It may well be that if an alien is told with particularity what it is said he has done it will become quite obvious to him from whence that information has been received. The only person who can judge whether such a result is likely is the person who has in his possession all the information available ... If he comes to the conclusion that for reasons such as those which I have just endeavoured to outline he cannot afford to give the alien more than the general charge against him, there one has the dilemma. The alien certainly has inadequate information upon which to prepare or direct his defence to the various charges which are made against him, and the only way that could be remedied would be to disclose information to him which might probably have an adverse effect on the national security. The choice is regrettably clear: the alien must suffer, if suffering there be, and this is so on whichever basis of argument one chooses."

Nevertheless, if an applicant is not given a full opportunity to deal with confidential information adverse to his interests, the probative force of the information must be particularly cogent if that information is to be acted upon. There are notorious risks in failing to hear an opposing view - slender proofs may falsely seem irrefragable, and the scales of justice may falsely seem to be tipped by the weight of insubstantial factors.

In the present case, the public interest in protecting the sources of information used to combat crime was paramount, and it was necessary to ensure confidentiality of the evidence which referred to information of that kind given to Detective Jenkins. In a court of law, the evidence would not have been given at all (Marks v. Beyfus [1890] L.R. 25 Q.B.D. 494 at p.498). Accordingly, the applicant and the public (but not the applicant's counsel and solicitors) were excluded while Detective Jenkins gave some of his evidence. But the evidence given in camera before me did not live up to expectations in that it lacked the cogency which would support a finding of fact against the applicant. In part that evidence was hearsay, and hearsay inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes (see G.A. Flick, Natural Justice, Sydney 1979, pp.61 et seq.). I refrain from further comment upon Detective Jenkins' evidence in these published reasons, but I add an annexure relating to that evidence. I direct that the annexure be kept in a sealed envelope in the Principal Registry, that a copy be served upon the Minister or his representatives, and that a copy be shown to the applicant's legal advisers. I prohibit the publication of the annexure except to the Minister, his representatives and the officers of his Department concerned with deportations, and to the applicant's legal advisers, reserving leave for any interested person to apply to extend the exceptions or to revoke prohibition.

In these reasons, it must suffice to say that the confidential information, in conjunction with the other circumstances of the case including my finding as to the applicant's access to clandestine funds, does not warrant a positive finding that he was involved in commerce in marihuana. There are ample grounds for suspecting that the applicant was so involved, but the evidence does not prove it. When an alien who is an established resident becomes liable to deportation under s.12, the general rule must be that the conduct which is relied on to show that a deportation order-is in the best interests of Australia must be proved, not merely suspected.

There are some special cases to which the general rule requiring proof need not apply. Considerations of national security or an urgent need to eliminate a threat to human life may require deportation of a convicted alien without waiting upon proof of conduct other than that for which he was convicted. These are special cases where suspicion is related to conduct which would reveal - if the suspicion were well-founded - that the convicted alien is an immediate threat to the security of the nation, or to the lives of Australian residents, and that the threat is unlikely to be averted by the ordinary processes of law enforcement. Where for example a convicted alien is reasonably suspected of being a member of an active terrorist organization, or of unlawfully training an army for insurgency in a foreign country, or, in rare cases, of threatening the life of another, deportation under s.12 may be justified. These categories of special cases are not necessarily exhaustive, for other cases may demonstrate threats of the kind referred to which deportation may be the proper means of averting, But this is not a special case.

If it were proved that the applicant is or had been involved as an entrepreneur in large scale trading in marihuana, no doubt the case against him would be a strong-one, for the legislature has provided severe penalties for conduct of that kind, and large scale drug trafficking is a crime which is intolerable in the Australian community. But criminal conduct which does not pose immediate threats of the kind to which I have referred should be proved, not merely suspected.

If it were otherwise, the security which is offered to an alien who comes to reside in Australia and who establishes his family here would be, to an extent, chimerical. The liberty which marks our society depends in no small measure upon immunity from sanction unless there is proof of the conduct which attracts the sanction. Notions of fairness - notions which reflect our ability to give to aliens who lawfully settle here the security needed to establish a family, home and employment - require that an alien resident should not be deported without proof of the facts tending to show that his deportation is in the best interests of Australia. A family is not to suffer the banishing of the husband and father without such proof. Suspicion is wholly insufficient.

In this case, it is certain that deportation of the applicant would destroy or gravely damage a growing Australian family, and that would be a grave detriment not-only to them but to Australia. His deportation, separating him from his Australian wife and children or requiring them to accompany him to a country that the children do not know, would be destructive of their prospects in life as well as his. Such a consequence is not justified by evidence which fails to prove that he was engaged in trading in marihuana, but which raises only a suspicion that he was so engaged. When it is remembered that the applicant, an Australian resident of long standing, would have become an Australian citizen in law if he had been informed that the grant of citizenship had been made, the case for revoking the deportation order is further strengthened. I am not persuaded that the applicant's deportation would be in the best interests of Australia.

Australian Citizenship Act 1948

Pochi and Minister for Immigration anf Ethnic Affairs [1979] AATA 64 (24 May 1979)

Pochi and Minister for Immigration anf Ethnic Affairs [1979] AATA 64 (24 May 1979)

At a glance

Court

Decision date

Before

Source

Judgment (128 paragraphs)

Legislation Cited (3)

Cases Cited (10)

Pochi and Minister for Immigration anf Ethnic Affairs [1979] AATA 64 (24 May 1979)