R v Raby [2003] VSC 213

5. Before arraignment, counsel for the accused applied to the trial judge for an order reserving a point of law for consideration of the Court of Appeal pursuant to s. 446(2) of the Crimes Act 1958. The contention was that the accused had been brought within the jurisdiction of a court forcibly and without his consent from outside Australia without extradition. Accordingly, the prosecution should be forever stayed on the ground of abuse of process.

8. His Honour heard submissions and evidence on a voir dire over some five days and on 11 February 2002, he published reasons for refusing to reserve the point of law. His Honour did, however, accede to the underlying contention put on behalf of the accused, and he ordered, pursuant to s. 391A, that the prosecution be forever stayed and that the accused be discharged from custody.

11. The Crown challenges this conclusion. It has, by originating motion filed on 9 April 2002, applied to this Court for declaratory relief and for relief in the nature of certiorari. Its claim for an order in the nature of mandamus was not pressed. Five grounds are asserted for the relief sought:

"1. The Firstnamed Defendant erred in ordering a permanent stay of proceedings in relation to counts 1 to 5 of the presentment filed against the Secondnamed Defendant. 2. The Firstnamed Defendant erred in directing himself as to the principles applicable to the exercise of his discretion to stay the proceedings. 3. The Firstnamed Defendant erred in failing to correctly apply the principles relevant to the exercise of his discretion to stay the proceedings. 4. The Firstnamed Defendant erred in his application of the relevant principles to the facts as he found them. 5. The Firstnamed Defendant erred in the exercise of his discretion by relying upon the following findings which were erroneous: a. That the Secondnamed Defendant was brought within Victorian jurisdiction irregularly, unlawfully and wrongfully; b. That the New Zealand authorities ordered the ship to return to Queenscliff as the result of a request or demand by the Australian authorities; c. That the Australian authorities were proactively involved in bypassing due process."

15. The firstnamed defendant, the County Court, has informed the Court, as is usual, that it will take no part in the proceeding and that it will simply abide the order of the Court.

18. It was accepted by all parties before me that I have power to grant the relief sought if I am satisfied that the judge fell into error of law.

21. I will, of course, act upon his Honour's findings of fact. The other facts contended for before me were, to a very large extent, uncontroversial.

24. The complainant was a guest at a cocktail party which was held on HMNZ Te Mana on the evening of Saturday 16 September 2001. The incident is alleged to have occurred on board at about 11 pm.

27. The accused was a leading seaman and a serving member of the Canadian Defence Forces (Navy) and a Canadian national. He was seconded on exchange to the New Zealand Navy and posted to the Te Mana which was, from the Australian perspective, a foreign warship at the relevant time within Australia with the consent of the Australian Government. He was, on the night in question, serving as bar steward at the cocktail party.

30. The allegation was brought to the attention of the ship's officers on the morning of Monday 18 September. They commenced investigations both on the vessel and ashore. At 1620 hours the Ship's Master-at-Arms, Chief Petty Officer Harrai Charan Sund, and another Petty Officer naval police, went to the Williamstown Police Station. The Victoria Police offered assistance to the New Zealanders which was accepted. Detective Senior Constable Jenny Wilson and Detective Senior Constable Woodhouse participated in the further investigation and Victoria Police provided forensic and other assistance. Meanwhile, the accused remained on board at the direction of CPO Sund.

33. At 0255 hours on Tuesday 19 September, CPO Sund was advised by naval authorities in New Zealand that the New Zealand Navy had jurisdiction under s. 15 of the Armed Forces Discipline Act (NZ). He was directed to give to the accused a caution and a Bill of Rights pursuant to New Zealand law and to take custody of the clothes he was wearing on the evening in question. If he would not comply, CPO Sund might place him under arrest and carry out searches involuntarily. At about 0312 hours on the same day the accused was cautioned and handed over his clothes as required. He was not then arrested.

36. Later that morning, at 0756 hours, CPO Sund told the accused of the complaint and that an enquiry was underway. He was to be put ashore to enable him to participate, if he chose, with the enquiries then being undertaken by Victoria Police. Still later, at 0809 hours, the accused was told by CPO Sund that he would not be put ashore since his safety might be at risk.

39. The vessel put to sea at 0845 hours to resume engineering trials outside Port Phillip Bay on its way back to New Zealand.

42. At this time, discussions were taking place between the Australian Foreign Affairs Department and the New Zealand High Commission as to the issue of the jurisdiction of the Victorian authorities and the New Zealand authorities. It seems that the Canadian government was also involved. Victoria Police therefore contacted the ship at 1800 hours advising it to remain in Victorian waters overnight, presumably pending a resolution of the jurisdictional matters. At 2110 hours, the accused was formally arrested for sexual violation contrary to s. 128 of the Crimes Act (NZ)>. He remained in custody at all material times thereafter until 1328 hours on 20 September. Meantime, the ship continued its engineering trials at sea outside Port Phillip, apparently with the intention of returning to New Zealand in due course, with the accused on board. Detective Wilson was informed of this at 0900 hours on 20 September. Shortly afterwards, at 0925 hours, she was informed by the Commanding Officer, Captain Tony Parr that the ship would remain in Australian waters all day. _[

• Notwithstanding this information, from 1024 hours to 1115 hours on 20 September, the Te Mana was in fact outside Australian territorial waters. His Honour found that she was up to 0.6 nautical miles outside the territorial waters during this 51 minute period. Her departure from Australia was inadvertent in the sense that she was carrying out trials without any concern to remain within or outside the territorial zone. Commander Keith Alexander Robb, the executive officer, said that he did not know whether the ship went outside Australian territorial waters. This is because he was unsure where was the base line from which the 12 mile zone was to be measured.

• According to Gerard Lawrence Purcell, an expert navigator called on behalf of the accused before the County Court, the ship's records showed that she was travelling in Bass Strait, south of Phillip Island at 1032 hours when the engines were shut down as part of the engineering trials. Commander Robb told his Honour that the ship was then stopped, without an ability to manoeuvre, broadside to the prevailing northerly winds, and drifting in a south easterly direction away from land. The finding of his Honour was that she had then been outside the territorial limit for 8 minutes, that is, from 1024 hours. By 1050 hours she was clearly outside the territorial zone and at her farthest point from the Australian mainland. Then the vessel travelled under power towards Port Phillip and was again within territorial waters at 1115 hours.

• Commander Robb said that the change of course toward Port Phillip was pursuant to an instruction given to the ship from maritime command in New Zealand to return the accused to the Canadian authorities ashore in Victoria. The instruction was received at about 1030 hours at a time when the vessel was in fact outside Australian waters, as his Honour found. His Honour also found that the sole reason for the vessel changing course and returning to Port Phillip was to place the accused in the hands of the Australian authorities.

• His Honour in his ruling made no finding as to the state of mind of the ship's personnel or that of the Victoria Police as to whether the vessel left Australian waters at any time and, a fortiori, whether it was outside those waters when the direction to return the accused to Victoria was received from New Zealand. With respect to Victoria Police, Detective Wilson said that she believed the vessel did not leave Australian territorial waters. This appears to have been based on information given to her by senior police officers that the vessel was to remain in territorial waters.

• The ship then returned to the entrance to Port Phillip where the accused was released from close arrest at 1328 hours and at 1350 hours he left the vessel in the company of Commander Robb and was put ashore at Queenscliff where he was met at 1440 hours by Lieutenant Colonel McPhee, a Canadian military representative, Detective Wilson and Detective Acting Senior Sergeant Warren. Detective Wilson then and there formally arrested the accused and the five went to Geelong Police Station where he was interviewed. In his interview he denied the offences.

• Against this background, his Honour concluded as follows:

"The accused's return to Victoria was not voluntary, it was forced. He was not consulted about it; he was simply ordered to pack his bags. No application for extradition was made. In recognition of the close relationship between Australia and New Zealand, both the Extradition Act 1988 (Commonwealth) and the Extradition Act 1999 (New Zealand) provide for a simplified form of extradition which is frequently referred to as `the backing of warrants' procedure. That procedure was not followed in this case; it was bypassed. In the circumstances outlined, I conclude that the accused was brought within Victorian jurisdiction irregularly, unlawfully and wrongfully."

• As a matter of international law, a vessel and its crew situate within Australian waters is and are subject to the laws of Australia and are amenable to the jurisdiction of its courts. Where, however, the vessel is a foreign warship in Australian territorial waters with the consent of Australia, it and its crew are at common law immune from the jurisdiction of the Australian criminal courts, at least with respect to conduct related to the military activities of the ship and its personnel[1]. This immunity, in a case such as the present, is subject to any express legislation or agreement between Australia and New Zealand[2], such as the Defence (Visiting Forces) Act 1963 (Cth) or the Status of Forces Agreement dated 29 October 1998 between the Government of Australia and the Government of New Zealand. This common law immunity, however, may be waived by the foreign power, as appears ultimately to have been the case here. This case does not concern this immunity and I need say nothing further about it.

• The fact is that the ship left Australian territorial waters at a time when the New Zealand authorities were asserting jurisdiction over the accused. Once on the high seas, the ship and its personnel, including the accused, enjoyed a further and more general immunity from the jurisdiction of this State[3]. The accused was no longer in Australia; he was on New Zealand territory for the purposes of extradition law[4]. The Victorian authorities, then, had no right to demand that the accused be delivered up to them. The evidence, however, does not show that they made such a demand; it shows that the decision to put the accused ashore in Victoria was the decision of the New Zealand naval authorities, a decision which was made at the request of the Australian authorities, as his Honour found.

• It was put on behalf of the accused that this decision was an unlawful one because its implementation had the consequence of unlawfully by-passing the New Zealand extradition procedures; the accused was involuntarily removed from the jurisdiction of New Zealand and delivered into the jurisdiction of the State of Victoria otherwise than by normal extradition process. In these circumstances, the County Court properly exercised its discretion to stay the proceeding[5].

• In argument before me, it was accepted on behalf of the Crown that the Australian authorities had no power to require the New Zealand ship to put the accused ashore when it was outside territorial waters; but they did not concede that the New Zealand authorities might not, against his will, lawfully deliver him to Australia without extradition process. Counsel argued that, by requesting the New Zealand authorities to direct the ship to return to Australian waters, the Australian authorities did not act in breach of international law[6]. Notwithstanding this non-concession, argument before me proceeded on the basis that the New Zealand authorities acted unlawfully in carrying the accused from the New Zealand warship on the high seas to Australia without his consent for the purpose of his facing criminal charges in Australia[7]. I, too, am content to proceed on that basis.

• The Crown contended that a stay will be ordered only where the prosecuting authority is implicated in a reprehensible and serious breach of the extradition processes. They argued that his Honour's exercise of discretion was flawed inasmuch as he did not give any or any sufficient weight to the requirement as to the moral reprehensibility of the conduct of the Australian authorities.

• The cases to which I was referred show that the accused, being physically present within the jurisdiction of the County Court, is amenable to its jurisdiction notwithstanding any illegality attending his being brought before that court. The discretion of the court, nevertheless, to stay the criminal process to which he is subject may be exercised where his presence is the result of unlawful conduct on the part of the local investigating or prosecuting authorities. The policy underlying this discretion and which informs its exercise is not that the trial will be unfair, but rather that the means which led the accused to face its criminal proceeding represents an abuse of the court's own process.

• In Levinge v Director of Custodial Services[8] the applicant had been arrested in Mexico and unlawfully taken to the United States from which country he had been lawfully extradited to Australia to face criminal charges. He sought and was refused an order staying the charges on the basis that he was unlawfully brought before the court. Kirby P, on the appeal from this refusal, analysed the position as follows:

"Where a person, however unlawfully, is brought into the jurisdiction and is before a court in this State, that court has undoubted jurisdiction to deal with him or her. But it also has a discretion not to do so, where to exercise its discretion would involve an abuse of the court's process. Such an abuse may arise by reason of delay on the part of prosecuting authorities. But delay is only one variety of unfair or wrongful conduct on the part of those authorities. Other such conduct may exist, including wrongful and even unlawful involvement in bypassing the regular machinery for extradition and participating in unauthorised and unlawful removal of criminal suspects from one jurisdiction to another. It still remains to be determined whether the conceptual basis of the relief referred to in R v Hartley[9]; R v Bow Street Magistrates; Ex parte Mackeson[10]; Herron[11] and other such cases is to prevent prosecuting authorities from taking or securing advantage from their own misconduct or that of their servants or agents or is to assert the entitlement of the courts to protect the integrity of their own process and to uphold that integrity and the perception of it in the eyes of the parties, of the community and of the judge themselves. The first view has, as its conceptual basis, a principle akin to estoppel. The second view is grounded more fundamentally in a conception of the necessary purity of the `temples of justice' and the undesirability that the administration of justice itself should become contaminated by involvement (or the perception of involvement) in unlawful or wrongful activities on the part of the authorities: cf Carver v Attorney-General for New South Wales (Court of Appeal, 2 July 1987, unreported). Most of the case law appears to be expressed in terms of the former justification. For my own part, I incline towards a preference for the latter. Perhaps the two concepts are simply dual aspects of the one consideration. However that may be, it is not necessary to resolve that controversy in this case."[12]

• McHugh JA, after considering the cases including Hartley's case, concluded as follows:

"That case and the cases which have followed it decide that, where there is in existence an extradition treaty which is knowingly circumvented by the prosecuting authorities, a court has jurisdiction to stay criminal proceedings on the ground that they are an abuse of process. It seems to me, as it seemed to the New Zealand Court of Appeal, that the courts cannot turn a blind eye to a deliberate disregard of statutory requirements concerning extradition. In many areas of the civil law, the courts refuse to entertain causes of action on the ground that the plaintiff has been guilty of unlawful or illegal conduct or has contravened a rule of public policy. I see no reason why in an appropriate case a court does not also have jurisdiction to prevent the bringing or continuance of a criminal prosecution which offends `those canons of decency and fairness which express the notions of justice of English-speaking peoples even towards those charged with the most heinous offenses": Rochin v California 352 US 165 at 169 (1952). It would be a blot on the administration of justice if, on the facts of a case like United States v Toscanino, the Court had no power to stay the prosecution."[13]

• Each of the judges in Levinge's case upheld the decision at first instance on the basis that, although the applicant was brought unlawfully into the United States, it had not been established that the prosecution had been "either a party to the unlawful conduct or connived at it"[14]

• This passage was referred to by the learned County Court judge in this case. His Honour there construed the expression "connived at" as requiring only that the court be satisfied, as he was, that Victoria Police was implicated in the unlawful act of the New Zealand authority:

"In this case the inescapable inference is that the New Zealand authorities ordered the ship to return to Queenscliff and land the accused there not of their own volition, but as the result of a request or demand by the Australian authorities. The Australian authorities thereby participated in and were involved proactively in the process which constituted a shortcut, bypassing what the court referred to in Hartley's case as `the imperative requirements of the statute'."

• It was put that this was a finding of fact which I should not disturb in this proceeding. I agree. I proceed on the basis that Victoria Police perhaps instigated, and certainly knew and approved, of the decision of the New Zealand authorities to direct the vessel to return to Victoria to hand over the accused at Queenscliff. His Honour's finding, however, does not go to the point of concluding that the Victoria Police knew that the direction was or was to be given to a ship outside Australian territorial waters or that it was unlawful inasmuch as it bypassed normal extradition procedures.

• The next case to which I refer is the decision of the House of Lords in R v Horseferry Road Magistrates' Court (Bennett's case)[15]. This case concerned a New Zealand citizen, Paul James Bennett, who was wanted for criminal offences said to have been committed in England. He was residing in South Africa. The English police considered and decided against instituting extradition proceedings against him. They arranged with the South African police to have him arrested in South Africa and forcibly returned to England under the pretext of returning him to New Zealand. The question certified for consideration by the House of Lords was as to the power of the court to enquire into the circumstances by which a person had been brought within the jurisdiction and as to the available remedies where the person was unlawfully arrested within the jurisdiction for an offence committed within the jurisdiction.

• The Lords, by a majority, held that the High Court did have the power to enquire into those matters and might stay the prosecution if satisfied that the person was brought within the jurisdiction in disregard of extradition procedures[16]. The reason given by the Lords for this was the concern of the court that its process be not tainted by unlawful executive action:

"If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it."[17]

• Although it does not appear that their Lordships were referred to Levinge's case, decided in New South Wales some five years previously, their reasoning coincides with that of the Australian court. The jurisdiction to stay is available to ensure that the executive acts lawfully, to ensure that the police and prosecuting authorities should not enjoy the fruits of an abuse of executive power. Accordingly, it will be exercised only where the wrongful act is that of the local authorities or of which the local authorities have been a knowing party[18]. Moreover, the jurisdiction is one which will be exercised sparingly, where there is established a deliberate abuse of extradition procedures[19] and not some venial irregularity[20]. This is because the exercise of the jurisdiction to grant a stay conflicts with a more general requirement of the law and of the community that those charged with a serious criminal offence should be brought to trial. This requirement of caution in the exercise of this jurisdiction has been echoed by the Full Federal Court in Bou-Simon v Attorney-General (Commonwealth)[21] where the circumstances necessary for a stay on the ground of an extradition order procured by a misleading affidavit were said to include bad faith or deliberate deception[22]. The court observed that those cases where a stay has been ordered have involved "serious and weighty matters"[23].

• I return now to the reasons of the County Court judge in the present case. His Honour found that the normal machinery for extradition had been bypassed when the Te Mana returned to Australian territorial waters bearing its involuntary passenger. His Honour made no finding as to the state of mind of those in command of the vessel or of the New Zealand authorities who gave directions to the Commanding Officer. Nor did the evidence before the County Court warrant the conclusion that those persons were aware that the vessel was outside Australian territorial waters at the time the direction was given from New Zealand or at the time the vessel turned to travel towards Port Phillip. They were not guilty of knowingly or deliberately bypassing normal extradition procedures. Moreover, given the period of time and the distance from the Australian zone, their sin was venial. If, as they may have believed, the vessel was within the territorial zone at the time, no question of unlawfulness would have arisen.

• The position of the Australian authorities is not relevantly different. His Honour found that they made a request or demand of the New Zealand navy that it direct the vessel to return to Port Phillip to put the accused ashore. Let it be assumed that the making of such a request or demand is a sufficient involvement to amount to connivance in the act of returning him to Victoria[24]. Counsel for the accused in the County Court disclaimed any suggestion that Detective Wilson was herself guilty of conniving, in the pejorative sense of the word, in any impropriety. He accepted, properly in my view, that the evidence did not warrant a finding other than that she acted on instructions of her superiors and with the belief that she was acting appropriately. There was no evidence to support a finding that her superiors knowingly bypassed proper extradition procedures.

• In these circumstances the basis for the stay disappears. His Honour, in reaching the contrary position, misdirected himself as to the proper test. It is not sufficient for a stay of the kind here under consideration merely that there has been some departure from the proper procedures for bringing the accused from outside the jurisdiction; the Court must undertake some assessment of the seriousness of the departure and of the guilty mind of those involved, for it is only where there is a deliberate and serious departure from the required legal procedures that the Court will register its disapproval by denying to the prosecuting authority the right to proceed against an accused person. In the present case, the departure was minimal and inadvertent and there is no evidence of the required guilty mind. The stay order ought not to have been made.

• Conformably, therefore, with the orders made in DPP v His Honour Judge G D Lewis[25] I propose the following declarations:

1. That the firstnamed defendant erred in determining that the circumstances in which the secondnamed defendant was brought within the jurisdiction of the County Court of Victoria amounted to an abuse of process warranting a stay of the prosecution.

2. That the secondnamed defendant's application for a permanent stay of the prosecution based on abuse of process should have been refused.

I shall hear counsel further as to the precise terms of the declarations to be made.

[1] Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 470, per Starke J; R v Disun [2003] WASCA 47 at [19], per Anderson J.

[2] [1948] HCA 37; (1948) 77 CLR 449 at 461, per Latham CJ.

[3] United Nations Law of the Sea Convention Article 95_._

[4] Extradition Act 1988 (Cth) s. 81(c); R v Disun [2003] WASCA 47 at [17].

[5] See R v Hartley [1978] 2 NZLR 199 at 215-7, per CA.

[6] R v Chen [2002] NSWCCA 174; (2002) 130 A Crim R 300 at 308 (CA, NSW).

[7] R v Hartley [1978] 2 NZLR 199.

[8] (1987) 9 NSWLR 546.

[9] [1978] 2 NZLR 199.

[10] (1981) 75 Cr App R 24.

[11] (1986) 6 NSWLR 246.

[14] 9 NSWLR 546 at 554, per Kirby P; at 565, per McHugh JA and at 567, per McLelland A-JA.

[15] [1993] UKHL 10; [1994] 1 AC 42.

[16] [1993] UKHL 10; [1994] 1 AC 42 at 64.

[17] [1993] UKHL 10; [1994] 1 AC 42 at 61-2, per Lord Griffiths, Lord Slynn at 84, concurring. See, too, at 67 per Lord Bridge and at 76, per Lord Lowry.

[18] [1993] UKHL 10; [1994] 1 AC 42 at 62, per Lord Griffiths; at 77, per Lord Lowry.

[19] [1993] UKHL 10; [1994] 1 AC 42 at 64, per Lord Griffiths. See also R v Martin [1997] UKHL 56; [1998] AC 917 at 931-2, per Lord Hope.

[20] [1993] UKHL 10; [1994] 1 AC 42 at 77, per Lord Lowry.

[21] [2000] FCA 24; (2000) 96 FCR 325 at 337, [34].

[22] [2000] FCA 24; (2000) 96 FCR 325 at 338 [36].

[23] [2000] FCA 24; (2000) 96 FCR 325 at 339 [40].

[24] Compare [1993] UKHL 10; [1994] 1 AC 42 at 77, per Lord Lowry.

[25] [1997] 1 VR 391.