Samsonidis v Commissioner, Australian Federal Police

REASONS FOR JUDGMENT 1 The applicant, Dimitrios Samsonidis, applies for declaratory and consequential relief against the Commissioner, Australian Federal Police ("the AFP"), the Attorney‑General for the Commonwealth, the Commonwealth Director of Public Prosecutions and Ms A J Chambers, a Victorian Magistrate. 2 The applicant was arrested in Greece on 15 May 2006 and charged with: · importing a drug of dependence; · trafficking in a drug of dependence; · possessing a drug of dependence for the purpose of trafficking; · attempting to possess a drug of dependence; · money laundering; · possessing a firearm; · possessing the proceeds of crime. The applicant has remained in custody awaiting trial on these charges. The trial is listed to commence on 10 September 2007. 3 The evidence before the Court, with the exception of the documents referred to in pars [14] to [16] below, is found in two affidavits sworn by Mr James Valos, the applicant's Australian solicitor, and in the exhibits to those affidavits. Any factual matters to which I refer in these reasons is derived from those affidavits save where otherwise indicated. 4 On 28 June 2006 in the Athens Court of First Instance, a United States of America Drug Enforcement Agency agent, Mr John Livanis, gave evidence that he had received information from Australian authorities in respect of a number of telephone conversations between the applicant and others alleged to be involved in the sale of drugs in Greece. 5 Mr Valos exhibited to his first affidavit a certified translation of the relevant part of the evidence of Mr Livanis, which is found in a document entitled "Report on the Sworn Examination of the Witness" and is headed: "HELLENIC REPUBLIC DEPARTMENT OF JUSTICE ATHENS COURT OF FIRST INSTANCE EXAMINER OF THE 25TH DEPARTMENT". The report is an examination of Mr Livanis by an Athens examining magistrate. In the report Mr Livanis gave the following evidence: "I work in the Drug Enforcement Administration of America (DEA). Just before May 2005, information came to my department from people of our department, but also from the Australian authorities. The information was about a network that was trafficking various kinds of drugs, based in Greece, but was in Australia in various places in Western Europe but also in Latin America. Thus, from May 2005 until September 2005 my department commenced the first investigations to verify this information. During this time, from the investigations we performed, we arrived to three names, namely Dimitrios Samsonidis, Constantinos Skouras and Andreas Stathopoulos, who were said to be heads of the network. What we found was that these three had an extensive police record relating to drug trafficking and violence. Thus, we requested from the Australian authorities to release the police records of the abovementioned individuals to us, an action which they performed … … During the time of this investigation, colleagues from Australia came to the American Embassy in Greec[e] and told them that Samsonidis was a person whom they were investigating for illegal money laundering at the time and that they had information that Samsonidis, as well as other individuals from Australia whom they did not know as yet, were bringing larges [sic] sums of money to Greece through bank cheques, each of which was under the sum of 10,000 Euros so that the details of their holders would not be recorded. We knew that Samsonidis was in Australia at the time and that Skouras and Stathopoulos were in Greece. Moreover, we had been informed by the Australian authorities that, from 1988 until that moment, Samsonidis was in a criminal organisation network for trade of heroin in large quantities and methamphetamines, and for money laundering derived from drug trade and for importing drug precursors for the production of methamphetamines. … … During this time I met with individuals from the Australian authorities in Athens who informed me and my service that they had information that Samsonidis and his network were preparing or had prepared a factory in Australia for the production of synthetic drugs such as amphetamines and methamphetamines. … … On 2/3/2006, after the legal, according to Australian laws, tapping of Samsonidis's phone, they heard at eleven o'clock at night Australian time, namely three pm Greek time, when Skouras contacted Samsonidis by phone and they told me that the two of them spoke in a foreign language between them, obviously in Greek, and Skouras said to Samsonidis 'that I have good news, that I have one thousand in my hands from the Americans and I am telling you this so that you can do what you have to on your side'. Samsonidis was happy on the phone after he heard this and that he asked Skouras if the Americans were OKAY and that they were not playing games against them, Skouras replied that the agreement for the transaction was good and Samsonidis replies that 'this is good news' and Skouras replied that 'I saw the one thousand eggs' and then Samsonidis told Skouras that he is organising to come to Greece. Next Skouras asked him if everything was ok and Samsonidis replied yes and that he had spoken to his people. Samsonidis asked if the Americans have a good reputation and Skouras told him 'we can take it and bury it for a year' and then that 'they (the Americans) want the others and that after that they disappear and that it hasn't cost us anything', Samsonidis finally said that he organised [illegible] at his offices in Australia. The Australian authorities informed us that they had heard the latter among the abovementioned and that they were a summary of everything that had been said between them. …" 6 The trial of the applicant had been listed before a three member Court of the Sixth Athens Court of Felonies on 23 May 2007 but had been adjourned, according to Mr Valos, for two reasons: · Mr Livanis had not been properly served with a witness summons compelling his attendance at the Athens Court; · the investigators had advised the Athens Court that they had requested information and assistance from the Australian authorities. Although some material had been forwarded by the AFP to them, there was other material which they anticipated was yet to be received. 7 A police member of the investigative team and a member responsible for the prosecution handed to the Athens Court a letter from the senior liaison officer of the Belgrade Office of the AFP dated 21 May 2007. 8 The letter, which was on the letterhead of the AFP, was dated 21 May 2007. It is not clear from the letter to whom it was addressed. The subject of the letter was "STATUS OF MUTUAL ASSISTANCE REQUEST". The text of the letter was as follows: "As informed on 18 May 2007, the Australian Case Officer the first package of information for the Greek Authorities was sent to Greece yesterday 17 May 2007 by urgent courier. The package contains volunteered information and witness statements that did not require the approval of the Minister. Due to the fact that information from the Ministry of Justice was not received in time (correct charges and penalties) there has been a delay in satisfying the Mutual Assistance request. I have spoken to the Australian Case Officer today and he has advised that the rest of the material will require another three (3) weeks to complete and send to the Ministry of Justice. I apologise for the delay." 9 The trial was re‑listed to proceed on 16 July 2007 but was again adjourned, according to Mr Valos, for two reasons: · Mr Livanis had again failed to attend; · the material anticipated from the Australian authorities had now been received but had not yet been translated from the English language to the Greek language. The trial was further adjourned to 10 September 2007. 10 Subsequently, Mr Valos received from the lawyers in Greece acting for the applicant the following documents which Mr Valos said had been photocopied from documents on the Athens Court file by the applicant's Greek lawyers and sent to Mr Valos on 26 July 2007: (a) An email dated 17 May 2007 from Ye Zhen, an officer in the Mutual Assistance and Extradition Branch of the Australian Government Attorney‑General's Department, to Christine Jager, a Federal agent in the Department of the Economic and Special Operations of the AFP. The subject was "Samsonidis" and the text was as follows: "This is just to confirm that the AFP may provide the material obtained on a voluntary basis (eg voluntary witness statements) directly to Greece. Ministerial approval is not required in relation to this material. Please don't hesitate to contact me if you have any other queries". (b) A letter from Christine Jager of the AFP to the Greek Ministry of Justice dated 17 May 2007. The subject of the letter was: "REQUEST FOR JUDICIAL ASSISTANCE OF THE PUBLIC PROSECUTOR, COURT OF APPEALS, ATHENS TO THE AUTHORITIES OF AUSTRALIA (CASE: CONSTANTINE OR KONSTANTINOS SKOURAS AND DIMITRIOS SAMSONIDIS)". The text of the letter, relevantly, was as follows: "The Australian Federal Police received a mutual assistance request from the Hellenic Republic (Greece) in the matter of Dimitrios SAMSONIDIS and Constantine (or Konstantinos) Skouras dated 2 October 2006 and an amended request in the same matter dated 8 December 2006. The request was made on behalf of your office in Athens. The request arises from the Greek authorities' investigation into the activities of SAMSONIDIS and SKOURAS for their involvement in organised criminal activities including drug trafficking and money laundering. The request sought assistance from the Australian authorities to obtain: · Income tax returns and declarations made to the Australia Taxation Office by SAMSONIDIS, SKOURAS and Monique BOYLE for the financial years from 1 July 2000 to 30 June 2006 · Records held by the Australian Securities and Investment Commission (ASIC) showing all companies which have SAMSONIDIS, BOYLE or SKOURAS as their director, secretary, for the period from 1 July 2000 to 15 November 2006 · Official copies of detailed criminal records of SAMSONIDIS and SKOURAS, and · Copies of documents and other evidence obtained by the AFP in the Australian investigation relating to allegations of money laundering, structuring of financial transactions to avoid reporting cash transactions of more than $10,000, and conspiracy to import a controlled substance into Australia. Material sought by the Greek authorities under this category includes telephone records, audio recording and transcripts, bank records, witness statements and documents authorising the interception and recording of telephone conversations. The AFP has extensive material on file obtained during the Australian investigation. This material can be provided to the Greek authorities under section 13A of the Mutual Assistance in Criminal Matters Act 1987. Under the Act, Ministerial approval is required before the material can be released by the AFP. Urgent Ministerial approval is currently being sought for the release of this information. This package contains volunteered information and witness statements obtained during the Australian investigation. This material can be provided to the Greek authorities without Ministerial approval. Importantly, the penal procedure against SAMSONIDIS and SKOURAS commenced on 16 May 2006. They will stand trial on 23 May 2007 before the 6th Athens Three‑Member Appeals Court for felonies (Criminal High Court of Justice). Consequently, the forwarding of this material to Greek Authorities is extremely urgent. It is anticipated that the majority of the material obtained during the Australian investigation will be forwarded to you within the next couple of days, pending approval from the Minister. Please contact me if you have any further enquiries or if I can be of further assistance." (c) A letter from the AFP to the Greek Ministry of Justice dated 23 May 2007. The subject was the same as on the letter of 17 May 2007 and the text of the letter was in identical terms to the earlier letter save that it added that on a day in May 2007 which was not identified, "… the Ministerial approval [sic] the release of this information to the Greek Authorities". (d) A transcript of an extract of the proceeding before the Magistrates' Court in Melbourne on 31 May 2007 before Ms A J Chambers, Magistrate, (the fourth respondent), in relation to "APPLICATION UNDER MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT". The transcript recorded the evidence of Mr Mark Anthony John Creighton, a federal agent of the AFP. (e) A letter from the Attorney‑General's Department to the Greek Ministry of Justice dated 13 June 2007. The subject was "Request for mutual assistance in the matter of Samsonidis and Skouras". The text of the letter was as follows: "Enclosed is the telephone intercept (TI) material provided by the Australian Federal Police (AFP) in response to the mutual assistance request in the matter of Dimitrios Samsonidis and Constantine (Konstantinos) Skouras. The material consists of: a) a compact disk labelled "TI product for requested M.A.R. to Greece - Samsonidis' containing audio records of intercepted telephone calls b) transcripts of the audio recordings contained on the compact disk, and c) relevant Telecommunications Interception Evidentiary Certificates. 2. Please also find enclosed: d) a transcript of the proceeding where material listed in a) to c) was produced in front of a Magistrate in Victoria, Australia e) a certificate issued by the Magistrate listing the material produced, and f) authorisation signed by the Australian Minister for Justice and Customs authorising the material listed in a) to c) to be produced and transmitted to Greece. 3. In addition to the TI material, in May 2007 the AFP provided Greek authorities with other relevant material it obtained during its investigations in Australia. 4. This material should only be used for the purposes for which it was sought and which was set out in the mutual assistance request. Please contact me if you want to use the material for a purpose other than that for which it was obtained. 5. Thank you for your continuing assistance in mutual assistance matters with Australia." (f) A letter from the AFP to the Greek Ministry of Justice dated 19 June 2007. The subject and the first three paragraphs of the letter were in identical terms to the earlier letters of 17 and 23 May 2007 from the AFP to the Greek Ministry of Justice. The letter then continued: "On 13 June 2007, in response to your request for mutual assistance, Ms Zhen Ye of the Attorney‑General's Department, International Crime Co‑operation Division, forwarded to you a package containing the following material:- a) a compact disk labelled "TI product for requested M.A.R. to Greece - Samsonidis containing audio records of intercepted telephone calls; b) transcripts of the audio recordings contained on the compact disk; c) relevant Telecommunications Interception Evidentiary Certificates; d) a transcript of the proceeding where material listed in a) to c) was produced in front of a Magistrate in Victoria, Australia; e) a Certificate issued by the Magistrate listing the material produced; and f) authorisation signed by the Australian Minister for Justice and Customs authorising the material listed in a) to c) to be produced and transmitted to Greece. I enclose a copy of a letter from Ms Zhen Ye dated 13 June 2007. Please find enclosed a signed witness statement from Federal Agent Mark Creighton, relating to the monitoring and translation of the following telephone calls:- DATE CALL NUMBER WARRANT CALLING NUMBER CALLED NUMBER 19/1/06 00013 A04750/01 (0434) 493 199 (0433) 188 752 19/1/06 00080 A04751/01 (03) 9333 3945 302331074122 27/1/06 00288 A04751/01 (03) 9333 3945 302331074122 2/3/06 00728 A04750/01 3026947844933 (0434) 493 199 3/3/06 00741 A04750/01 3026947844933 (0434) 493 199 13/11/05 00399 A04751/00 30___________ (03) 9333 3945