Waters v Secretary of the Attorney-General's Department

Chronology of events

1. The relevant events are as follows: 1 April 2017 Interception of cocaine shipment by Australian authorities 16 January 2018: The applicant is arrested and detained by Serbian authorities. 19 January 2018: Australian arrest warrant issued for the applicant. 23 January 2018: Australia diffuses an Interpol Red Notice (IRN) in relation to the applicant. 24 January 2018: The applicant is arrested in Serbia in response to Australia's IRN. He appears before the High Court of Belgrade, Special Department, and is placed under detention pursuant to the Law on International Legal Assistance in Criminal Matters (Serbia) (LILAC). 3 February 2018: The Attorney-General authorises the presentation of a request to Serbia for the extradition of the applicant in accordance with s 40 of the Extradition Act 1988 (Cth). 12 February 2018: Australia presents a request to Serbia for the extradition of the applicant to Australia 20 February 2018: Decision of the High Court in Belgrade, Special Department, that the legal requirements for extradition have been established. 12 April 2018: The appellate court in Belgrade, Special Department, cancels the decision of the High Court dated 20 February 2018. 27 April 2018: The High Court in Belgrade, Special Department for Organised Crime, decides that the legal assumptions for extradition are met. 6 June 2018: The appellate court in Belgrade, Special Department, upholds the applicant's appeal, cancels the High Court's decision of 27 April 2018, and returns the matter to the High Court for reconsideration. 24 September and 22 November 2018: Australia presents supplementary material in support of the extradition request to Serbia. 26 November 2018: The High Court in Belgrade, Special Department for Organised Crime, decides that the legal requirements for extradition have been met. 8 January 2019: The appellate court in Belgrade, Special Department, rejects the applicant's appeal and confirms the decision of the High Court dated 26 November 2018. 10 January 2019: Decision of the Minister of Justice of the Republic of Serbia approving the extradition of the applicant to Australia. 22 January 2019: The applicant is surrendered to Australian escort officers in Belgrade, and departs Serbia for Australia.
2. The offences for which extradition was both sought and granted were these (as described in the Extradition Order): 1. Importing commercial quantities of border controlled drugs to Australia from (sic) Article 307.1(1) and 11.2A of the Criminal Code of the Commonwealth; 2. Conspiracy to import commercial quantities of border controlled drugs to Australia from Article 307.1(1) and 11.5(1) of the Criminal Code of the Commonwealth; and 3. Conspiracy of possessing of commercial quantities of illegally imported border controlled drugs from Article 307.5(1) and 11.5(1) of the Criminal Code of the Commonwealth of Australia.

The judgment of the primary judge

1. The judgment of the primary judge is relatively short. The significant parts are as follows: [15] After hearing oral submissions, it seems to me that there could hypothetically be a legitimate forensic purpose to seek possible evidence in support of a proposition that Australian officials colluded in facilitating the extradition, by misleading relevant Serbian authorities. [16] Such purpose would be to obtain evidence to demonstrate, with the aim of making a permanent stay application, that Australian officials colluded or misled Serbian authorities concerning the extradition and that criminal proceedings now under way against Mr Waters would be an abuse of process by bringing the criminal courts into disrepute. [17] That, as hypothesised or in similar terms, could possibly be a legitimate forensic purpose. [18] The Courts recognise that irregular extradition or its equivalent in some circumstances could be so reprehensible that it might be an abuse of process to prosecute a person - R v Moti (2011) 245 CLR at 456. [19] However, the permanent stay remedy is very exceptional. To qualify, the irregularity would have to involve bad faith, such as the deliberate misleading of relevant authorities; Bou-Simon v Attorney-General [2000] 96 FCR 325. [20] At Hearing Book p. 21 the accused argues that there were very serious procedural irregularities in this extradition exercise. Firstly, involvement or acquiescence in detention for 6 days longer than was allowed by Serbian law. However, in my view, even if there was involvement or acquiescence as alleged in an irregularity concerning detention, and there were a few days of unauthorized detention, the defect falls within the sense of Kirby J's statement in Truong v R that; "a stay would not be available to cure some venial irregularity" (Truong v R (2004) 223 CLR 122 at 172). A mere non-serious breach or technical breach will not be sufficient. In my view, this alleged breach could not possibly justify a permanent stay of this indictment on the ground of abuse of process. [21] Mr Ginges also relied (Hearing Book p. 21) on alleged ''knowledge, involvement and/or acquiescence by Australian official in the Special Court of Belgrade's refusal to allow the accused to be represented by his preferred counsel and then in refusing a court appointed counsel sufficient time to prepare or confer with the Accused before the hearing". [22] I have seen no basis upon which it could be thought that a subpoena intended to extract evidence relevant to this point could be anything other than a "fishing expedition". If there were deficiencies in the Serbian appellate system it is not apparent from the material before me. At the final hearing the accused dismissed his counsel of choice of his own volition. Further, on two occasions the accused was successful in applications to the Serbian Courts. It is mere speculation to suggest that there was unfairness in the third appeal which may have been contributed to by Australian officials. He did have counsel, and he did have some time to speak with that counsel, presumably through an interpreter. [23] There is nothing in this point that assists Mr Water's claim. On the contrary, a reading of the materials and the various judgments from Serbia appears to me to reflect admirable judicial diligence and adherence to the principle of legality. Twice a court declined to be persuaded of the of the basis upon which Mr Waters extradition should be permitted. There was a very proper insistence in the necessity for further materials being forthcoming if extradition should be permitted. There was nothing sinister in this. I can identify nothing improper in the procedures adopted at the Serbian end of the matter, nor indeed from the Australian end. [24] True it is that there were requests made, as a result of the appellate court's correct insistence on proper process, for further details and documents to be supplied from Australia. But in my view there was nothing abnormal about this. Contested extraditions frequently involve such requests. [25] In its final judgment of 8 January 2019 the Appellate Court of Belgrade concluded that Mr Waters' complaints were groundless (Tab 7, p 209) and concluded (p. 210) that sufficient documentation had now been provided. It rejected (p. 215) a submission that the Court recordings made at Belgrade, in which Mr Waters is alleged to have made admissions, were unlawful. It noted at p. 217 that there was evidence that he had been found in the hotel in Belgrade with $600,000 AUD in cash. [26] In confirming the decision of the lower court given on 16 November 2018, the Appellate Court laid the basis for the decision of the Minister of Justice of Serbia approving the extradition of Mr Waters to Australia, and for his surrender to Australian officers on 22 January 2019. [27] It should be noted that the supply from Australia on two occasions of further information as requested was reflected in the Serbian High Court judgment of 26 November 2018. In that decision the court carefully listed supplementary information supplied from Australia, (Tab 7, pp 196-201) the general effect of which was ultimately to convince that court and the appellate court that the preconditions for extradition had been met. [28] As I said before, it is possible to formulate a hypothetically possible legitimate forensic purpose in this case. But to create a hypothesis does not guarantee that it has any basis in reality. In this case, the hypothesis that some sinister or improper conduct might be revealed from what is sought appears to me to be far-fetched. To use the unattractive and clumsy language of the standard test, it is not "on the cards". Put another way, it is fanciful or, as Mr Glover has put it on behalf of the Attorney, it is a fishing expedition. [29] Having read all of the materials before me, nothing in the conduct of the Attorney's officials suggests other than diligent pursuit of their obligations. [30] The contested parts of the subpoena will be struck out. However, in reaching this conclusion, I note that apart from the subpoena issue, Mr Ginges has foreshadowed (Hearing Book p. 23) a plea in bar of the indictment based on the fact that Mr Waters now does not face the same array of charges as those for which he was extradited; that is, there is now no charge of importing the cocaine, only of conspiracy to do so, and conspiracy to possess it. [31] Such a plea in bar is of course legally possible, but as to whether it might be made out, I have heard no argument and express no view. The mere fact that the substantive charge has been dropped, and that the accused now only faces conspiracy charges, does not in my opinion generate a basis (on the subpoena issue) for some "legitimate forensic purpose" by laying the groundwork for an abuse of process claim. From the beginning of the efforts to have Mr Waters extradited, Australian authorities said that he was facing both a substantive charge of importing, and conspiracy charges relevant thereto. The "import" charge was not added late in the piece, as was implied in the accused's submissions. In my view, the charges to be laid by the Director of Public Prosecutions are a matter for the Director of Public Prosecutions and the Australian courts. The Director of Public Prosecutions can formulate his charges according to his best judgment and discretion. Whether his choice of charges leads him into difficulties, via a special plea in bar based on extradition law (Extradition Act 1988 (Cth), s42), is not something I need to deal with today. If it is a good point, it is merely a matter of law rather than of further evidence. [32] In the light of this judgment it is unnecessary to consider questions of public interest immunity, or privilege. My ruling is that the motion is upheld, and the disputed parts of the subpoena are set aside.

Submissions

1. The applicant submitted that there is a legitimate forensic purpose in seeking production of the documents in order to ground an application for a permanent stay of proceedings. The applicant submitted that there were a number of irregularities and errors in the extradition process which will form the basis of the permanent stay application. He identified the following matters which will be relied upon on any stay application.
2. First, the applicant alleged that he was unlawfully detained between his arrest on 16 January 2018 and 24 January 2018. Secondly, his detention between 16 January 2018 and 22 January 2019, being in excess of 12 months, was contrary to Article 22 of the LILAC. Thirdly, the applicant's surrender by Serbia may have been contrary to the principles of dual criminality and speciality by reason of the fact that the two counts on the present indictment allege only conspiracy. Fourthly, no overt acts outside of Serbia are relied upon by the Crown, contrary to Article 16(2) of the LILAC. Fifthly, the applicant was denied procedural fairness at the final Appellate Court hearing because of a change of lawyers, and inadequate preparation time.
3. The applicant submitted that the focus of the subpoena is "to ascertain the extent of knowledge, acquiescence or connivance by Australian authorities" of the abovementioned matters, including the provision of information by Australian authorities to Serbian authorities or Courts "that may have been false or misleading". The applicant acknowledged that he cannot ask Australian courts to sit in judgment on Serbian courts and legal processes.
4. The applicant submitted that what was being sought was not a mere fishing expedition. Rather, it is submitted that there is a sufficient circumstantial case or set of circumstances, from which an inference should be drawn, that the documents would demonstrate some impropriety in relation to the Serbian courts being satisfied that the offending occurred outside Serbia. That would be done by comparing what is in those documents with what is contained in the Crown case statement. The information in those documents was provided at some time prior to the final decision of the appellate court in Serbia, and enabled the Serbian court to reach the view that the substantive offence charged satisfied the principle of dual criminality.
5. The applicant accepted that he did not have any direct evidence or documents to show connivance, impropriety, or misleading behaviour on the part of the Australian authorities, but submitted that the circumstances were such as to justify an inference that these things might have occurred, and that that was sufficient to show a legitimate forensic purpose for the documents being sought.
6. The applicant pointed to what Beech-Jones J said (with the agreement of Beazley JA and Hall J) in Bangaru v R [2012] NSWCCA 204 at [22]: [22] …Instead the conduct alleged in the material placed before the court of the surrendering country must be considered in order to identify the conduct alleged. In this case a consideration of that material confirms that the conduct alleged against the appellant was such that, if established, it could have supported his conviction on count 6.
7. The applicant submitted that the primary judge appeared to treat his submissions on the application of the principles of speciality and dual criminality as limited to a potential plea in bar, because his Honour did not consider or decide those issues by reference to the applicant's submission that they were connected to his contention of potential abuse of process. The applicant submitted that his Honour did not address the issues raised about the potential misapplication of the speciality and dual criminality principles. He submitted that the primary judge did not address, let alone decide, his contention concerning the application of dual criminality between the two Australian conspiracy offences on the one hand, and the appropriate Serbian offence which the applicant asserts carries a maximum penalty of 12 months' imprisonment.
8. The applicant submitted that the primary judge did not address, nor decide, the submissions relating to the applicant's contention that all of his alleged offending appears to have occurred on Serbian territory, with the result that the extradition was in contravention of article 16(2) of LILAC.
9. The applicant submitted, instead, that what the primary judge did was to look only at two of the issues in isolation.

Consideration

1. The applicant needs leave under s 5F(3)(a) of the Criminal Appeal Act. In my opinion, the issues raised by the appeal are of sufficient importance, whatever the outcome, and leave should be granted.
2. In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beazley JA (with whom James and Kirby JJ agreed) said: [59] It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. … … [64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was."
3. The applicant submitted that instead of that test, this Court should adopt and apply the "reasonable possibility" test referred to by the Victorian Court of Appeal in Zirilli v The Queen [2021] VSCA 2. That submission was not put to the primary judge. To the extent that the Victorian Court of Appeal concluded that "reasonable possibility" should be treated in the same way as the "on the cards" test, there is no reason to depart from what was said by this Court in Chidgey.
4. In any event, the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 recently considered what must be shown to demonstrate a legitimate forensic purpose, at least in relation to civil cases. As a result, the Court modified what was said in Chidgey, although without reference to the decision in Zirilli.
5. The principal judgment was given by Bell P who said: [69] If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll [Carroll v the Attorney-General for New South Wales (1993) 70 A Crim R 162] at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter [Carter v Hayes (1994) 61 SASR 451; (1994) 72 A Crim R 387] at 453, where a document or documents sought by subpoena by their nature have a "bearing on the issues in the case and may well have evidentiary value", a subpoena seeking such a document or documents will not amount to fishing. … [80] My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: "(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case", at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
6. Both Bell P at [72] and Brereton JA at [91] identified the difference between civil and criminal proceedings, in terms of what must be shown for a legitimate forensic purpose to be established, but both noted the significant developments in disclosure obligations in criminal cases in recent times, which might support a similar approach to the issue in criminal cases to that which is to apply in civil cases.
7. The approach now proposed by Bell P in civil cases, (his Honour said at [60] that the language of "tests' is to be eschewed, because the issue was whether the subpoena involved an abuse of process) had been put forward at an earlier time by Brereton J (as his Honour then was) in A v Z [2007] NSWSC 899; (2007) 212 FLR 255, and adopted by Macfarlan JA (Button and Ierace JJ agreeing) in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [29]. Macfarlan JA also noted in Tropic Asphalts that the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 concluded that, whilst it is necessary that it be shown that "it is likely [that] the documentation [subpoena] will materially assist on an identified issue", the word "likely" was not used in that formulation in the sense of "more likely than not".
8. In my opinion, whatever approach to demonstrating a legitimate forensic advantage is adopted, and whatever verbiage is used to express that approach, the applicant does not show error in the primary judge's judgment. The primary judge was prepared to accept that there could, hypothetically, be a legitimate forensic purpose for seeking possible evidence in supporting a proposition of collusion by Australian officials by misleading Serbian authorities. His Honour then proceeded to consider if there was evidence to support that purpose.
9. Although the primary judge's reasons were brief, it is clear that his Honour had regard to the relevant matters that were said to constitute the irregularities put forward by the applicant. That included the period of the applicant's detention (at [20]), the asserted procedural unfairness in relation to the applicant's legal representation (at [21), and the principle of double criminality (at [30] and [31]. In addition, the primary judge said that he had read the materials and the judgements of the Serbian courts, and he considered that there had been an adherence to the principle of legality (at [23]).
10. His Honour noted that the supplementary information supplied from Australia, which he identified by reference to the Court Book, was sufficient to convince the Serbian High Court and the appellate court that the preconditions for extradition had been met (at [27]). A reading of the judgments of the High Court of 26 November 2018 and the appellate court of 8 January 2019, shows that this information included matters concerned with double criminality, and where the offending occurred to satisfy Article 16(2) of the LILAC.
11. The evidence before the primary judge included an affidavit from Sarah Chidgey, the Deputy Secretary of the Attorney-General's Department. Ms Chidgey gave this evidence, which was not challenged: 21 There are a number of general principles that underpin bilateral extradition relationships, such as the one that exists between Australia and Serbia. One such principle is respect for the domestic laws and processes of partner countries. Once Australia makes an extradition request to a foreign country, it is a matter for that country whether to accept the request and, if so, to progress it on Australia's behalf in accordance with its laws and procedures. 22 In practical terms, this means that, once Australia makes an extradition request to a foreign country, the day to day management of-the matter, including any court proceedings initiated as part of the extradition process, is a matter for foreign authorities, according to their law. Officers within the Central Authority work with their foreign counterparts to provide assistance and further information as may be needed on the Australian law-enforcement matter in order to progress Australia's extradition request through the foreign country's domestic process. However, Australia is not, and would not expect to be, consulted on matters concerning the domestic handling of its request through the foreign country's process. This includes matters such as the submissions that are made to a foreign Court regarding Australia's request, how domestic legal requirements are to be applied in a matter, and/or how any administrative or court processes should take place. Australia necessarily relies upon the assistance and expertise provided by foreign authorities on such matters.
12. When that evidence is considered with the absence of any evidence which supported the applicant's submissions, the primary judge was not in error in concluding at paragraphs [22], [23] and [29] of his judgment that there was no evidence that provided any basis for the inference(s) which the applicant sought to have drawn by his Honour.
13. Counsel for the applicant at the hearing of the appeal appeared to accept that there was no evidence as such. Rather, what appeared to be suggested was that his Honour erred by not drawing the inferences sought.
14. Two matters in particular were relied on.
15. First, the applicant pointed to the fact that the Australian authorities were not successful until their third attempt in Serbia to obtain an extradition order. What was said to be inferred from that is that documents produced prior to the third hearing before the High Court in Belgrade must have contained false or misleading information to bring about a different result. However, a reading of the second appellate court judgment of June 2018 shows that the reason the applicant's appeal was upheld was: that the reasons which the first instance court gave for its conclusion are unclear stating that in the concrete case there is grounded suspicion that the accused committed the criminal offences for which he is charged, since in the caseload there is no necessary documentation from which such conclusion could be drawn. … the conclusion of the first instance court on conformity of the criminal offences stated, regarding the factual state of events, is unclear, which constitutes assumption for providing international legal assistance provided by provision of Article 7 of the Law on International Legal Assistance in Criminal Matters, since Article 7 paragraph 1 of the said Law provides that precondition to the execution of requests for mutual assistance includes that the criminal offence, in respect of which legal assistance is requested, also constitutes the offence under the legislation of the Republic of Serbia. However, in the caseload there is no indictment, the referring of which factual description of actions for which the accused is charged with, could lead to a conclusion that it is a matter of criminal offence which as such also constitutes offence according to our law.
16. When the matter was returned to the High Court in Belgrade, that court provided a much more thorough judgment, which detailed the evidence about the relevant matters, including the further evidence put forward at that hearing, and dealt with all of the issues, including the matters particularly identified by the appellate court. It is also apparent from the appellate court's judgment of 8 January 2019 that it considered that the High Court, on the third occasion, had comprehensively dealt with all of the issues it was required to consider, with the result that the final appeal by the applicant was dismissed.
17. Secondly, the applicant relied on the fact that the applicant was initially charged with the substantive offence of importing, and that charge was maintained for more than 12 months before it was dropped after the applicant was returned to Australia. The applicant submitted that, if the substantive offence had not been charged simply to facilitate extradition, it would be expected that the CDPP would have made a decision well before 12 months that there was not enough evidence to proceed with that charge.
18. This submission assumes that the double criminality rule is engaged in the applicant's favour, because only two counts of conspiracy are now charged. It is clear, however, that the two conspiracy charges always formed part of the offences for which extradition was sought.
19. Section 42 of the Extradition Act 1988 (Cth) relevantly provides: 42 Speciality Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country: (a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than: (i) any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or (ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; …
20. S 10(2) of the Act deals with "conduct". It provides: (2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.
21. Accordingly, the focus in s 42, particularly when viewed with s 10(2), is on the proof of conduct, that is, the acts and omissions of the applicant, as was explained in Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [29] and [196], and in Bangaru at [16] and [22]. The same conduct, as set out in the Crown Case Statement, is capable of supporting the conspiracy charges, as it was initially relied on to support the substantive charge. The conduct relied upon in the Serbian courts appears in the judgment of the High Court of 26 November 2018 at pp 13 to 17 of the judgment.
22. In relation to the speciality and double criminality issue, the High Court said: It has been ascertained that the criminal offences import of commercial quantity of border controlled drugs into Australia pursuant to Sections 307.1(1) and 11.2A of the Commonwealth Criminal Code, conspiracy for import of commercial quantity of border controlled drugs into Australia pursuant to Section 307.1(1) and 11.5(1) of the Commonwealth Criminal Code and conspiracy for possessing unlawfully imported commercial quantity of border controlled drugs pursuant to Section 307.5(1) and 11.5(1) of the Commonwealth Criminal Code, for which extradition of Waters Tristan Egon Sebastian is requested, is prescribed as criminal offence of criminal alliance for commission of criminal offences in Article 346 of the Criminal Code of the Republic of Serbia, as well as criminal offence of unlawful production, keeping and circulation of narcotics as referred to in Article 246 of the Criminal Code of the Republic of Serbia, thus according to its subjective and objective elements constitute the essence of criminal offences described in the factual actions for which Waters Tristan Egon Sebastian is accused in the proceeding which is conducted against him before the competent judicial authorities of the Commonwealth of Australia and according to domestic law - …
23. Ultimately, it was a matter for the Serbian courts to reach a view about whether the speciality and double criminality principle was engaged, and where the offending took place, so that there was compliance with Serbian law to permit extradition. Although the applicant extracts portions of Serbian law in an affidavit read before the primary judge, it is ultimately a matter for the Serbian courts how the written law is applied. In Mokbel v The Queen (2013) 40 VR 625; [2013] VSCA 118 the Victorian Court of Appeal said at [22]: It may readily be accepted that foreign law is a question of fact to be proved by expert evidence. It may also be accepted that great care must be exercised in using material produced by expert witnesses about foreign law. For example, an English translation of the text of a foreign written law is not necessarily to be construed as if it were an Australian statute. Not only are there problems raised by the translation of the original text (although this is not a problem when it comes to dealing with the Convention as it provides that both the French and English versions are classified as "authentic"), but also different rules of construction may be applicable in the foreign jurisdiction. (citations omitted)
24. The judgment of the High Court of 26 November 2018 sets out in detail how those issues were dealt with, and the appellate court considered that they had been appropriately dealt with by the High Court.
25. The applicant submitted that the primary judge only considered the speciality and double criminality principle in relation to the proposed seeking by the applicant of a plea in bar, and not as one of the irregularities which ought to have been considered with the others to lead to the inferences the applicant submitted should be drawn. Although the primary judge first raised this matter at [30] of his judgment, when referring to the foreshadowed plea in bar, a fair reading of what appears at [31] of the judgment shows that his Honour did not confine consideration of that issue to a plea in bar. The primary judge had already concluded at [29] of his judgment that the material did not suggest anything other than diligent pursuit of the Australian officials' conduct. His Honour then said at [31]: The mere fact that the substantive charge has been dropped, and that the accused now only faces conspiracy charges, does not in my opinion generate a basis (on the subpoena issue) for some "legitimate forensic purpose" by laying the groundwork for an abuse of process claim. From the beginning of the efforts to have Mr Waters extradited, Australian authorities said that he was facing both a substantive charge of importing, and conspiracy charges relevant thereto. The "import" charge was not added late in the piece, as was implied in the accused's submissions. In my view, the charges to be laid by the Director of Public Prosecutions are a matter for the Director of Public Prosecutions and the Australian courts. The Director of Public Prosecutions can formulate his charges according to his best judgment and discretion. (emphasis added)
26. It is clear that his Honour perceived that the documents were being sought to provide a basis for suggesting that the extradition amounted to an abuse of process.
27. In relation to where the offence took place, the High Court's judgment said: Further on, in terms of the Article 16 and Article 7 paragraphs 1-3 of the Law on International Assistance in Criminal Matter of the Republic of Serbia, this panel has ascertained that Waters Tristan Egon Sebastian is not a citizen of the republic of Serbia, …that the criminal offences for which extradition is requested have not been committed in the territory of the Republic of Serbia or in the place which has been equalized with its territory, against the Republic of Serbia or its citizen, which has been ascertained from the description of the factual state of events according to the written statements of the prosecutor, Australian Federal Police clerk and Police Investigator given under oath,… (emphasis added)
28. The "description of the factual state of events" referred to above was earlier set out in the judgment of the High Court (at pp 13-17), with all the relevant documents. The detail and the transparency provided in the description of the factual events in the judgment points strongly against the inference the applicant would have the Court draw, that the documents sought in the subpoena would show "knowledge, acquiescence or connivance by the Australian authorities" (as the applicant submits) of the irregularities asserted.
29. The applicant placed emphasis on a meeting between himself and a co-offender, Rohan Arnold, in Prague on 15 September 2017 which was mentioned in the Crown Case Statement, and a subsequent acknowledgement by the Commonwealth Director of Public Prosecutions that this meeting was not relied upon as an overt act for the conspiracy charges. The inclusion of that meeting in the material put forward to the Serbian courts was said to be misleading in the light of the later withdrawal of reliance on that act.
30. As the judgment of the High Court of 26 November 2018 expresses the issue in relation to Article 16(2) (at [47] above), and as the extradition order itself reads, the focus under that Article appears to be whether the offending was against the Republic of Serbia or its citizens. There is nothing in the detail of the factual material in the judgment which suggests any focus on the particular matter of the Prague meeting. Ultimately, however, it was for the Serbian courts to be satisfied that Article 16(2) has been complied with.
31. Many of the criticisms that the applicant makes of the reasoning of the primary judge would be apt if the application before him had been for the permanent stay of the proceedings based on the irregularities suggested. His Honour was not dealing with a stay application, but with whether the applicant had demonstrated a legitimate forensic purpose in issuing the subpoena. His Honour did not need to consider or decide those issues in circumstances where he accepted that, hypothetically, there could be a legitimate forensic purpose to seek possible evidence in support of a proposition that Australian officials colluded in facilitating the extradition by misleading relevant Serbian authorities. In reaching that opinion, his Honour was alive to the issues that the applicant wished to raise on a stay application. However, the enquiry was, whether there was any evidence to suggest that there had been some sort of encouragement of, or collusion or connivance with, the Serbian authorities in the irregularities that were alleged to have occurred.
32. To the extent that the applicant submits that pre-conditions to a valid extradition have not been met (e.g. whether the offending took place in Serbia; a proper application of the speciality and double criminality principle), those are matters for the Serbian courts. They were dealt with over the course of three hearings and three appeals. The position with regard to the applicant's representation is also a matter for the Serbian courts, a matter which the applicant appears to accept by reason of his pending appeal to the Serbian Constitutional Court.
33. The applicant is suggesting that there may have been wrongdoing by Australian authorities by reason of the material they placed before the Serbian Courts in relation both to the specialty principle, and in relation to whether acts were committed within Serbia. He is also suggesting that the charging of the substantive offence may have been a contrivance to obtain extradition. He puts forward no evidence in respect of either assertion.
34. What the applicant seeks in the present case is a classic example of a "fishing expedition". In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250, Owen J said (at 254): A "fishing expedition", in the sense in which the phrase has been used in the law means, as I understand it, that a person who has no evidence that there are a particular kind of fish in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.
35. The submissions of the applicant make clear that he does not know if there are any fish in the pool. The suggestion that there may be something in the documents sought which is relevant to the matters raised is entirely speculative. In any event, to the extent that the applicant relies on what was said in Bangaru at [22] (see at [17] above), the material the High Court in Belgrade relied upon in its judgment of 26 November 2018 is set out in its judgment.
36. In my opinion, a fair reading of the primary judge's judgment does not demonstrate that his Honour failed properly to apply the test of legitimate forensic purpose to all of the contentions raised; nor did his Honour misapply the "on the cards" test.
37. I would dismiss the appeal.

Conclusion

1. I propose the following orders:
2. Grant leave to appeal.
3. Dismiss the appeal.
4. BEECH-JONES J: Subject to what follows, I agree with the reasons of Davies J. As noted by his Honour, in the course of argument Counsel for the Applicant referred to the following passage from my judgement in Bangaru v R [2012] NSWCCA 204 at [22] (with whom Beazley JA and Hall J agreed) ("Bangaru"): "[22] …Instead the conduct alleged in the material placed before the court of the surrendering country must be considered in order to identify the conduct alleged. In this case a consideration of that material confirms that the conduct alleged against the appellant was such that, if established, it could have supported his conviction on count 6."
5. This proposition was derived from a consideration of Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10. It was enunciated in a context where the point raised at first instance and on appeal in Bangaru was that the appellant's trial on charges under former s 178BA of the Crimes Act 1900 (NSW) was in contravention of the specialty rule enacted in s 42 of the Extradition Act 1988 (Cth) because the corresponding offences for which he was surrendered for extradition by the USA were under former s 178A of the Crimes Act 1900. The above statement simply reflects the effect of s 42 in that where a plea or point is raised under the provision the analysis is not confined to simply comparing the offences in respect of which the person was surrendered by the extraditing country with the offences they stand charged with on their trial in this country. It also extends to comparing "any other offence [ie other than the offences in respect of which they were surrendered] of which the person could be convicted on proof of the conduct constituting [the offences for which they were surrendered]" with the offence(s) they stand charged with on their trial in this country (s 42(a)(i)).
6. Although s 42 was referred to, the applicant's argument before the primary judge, and in this Court, did not assert that the documents sought were necessary to make an application under that provision. Instead, in his submissions in this Court, which reflected his submissions before the primary judge, the applicant contended, inter alia, that his "surrender by Serbia may have been contrary to the principles of dual criminality and speciality" and documents were sought concerning the "knowledge, acquiescence or connivance" by Australian authorities in that circumstance (and others). This submission does not raise any contention under or concerning s 42. Section 42 is a provision directed to the courts of this country and not overseas courts. Section 42 says nothing about the validity of a "surrender" by a foreign court. An application which involves s 42 does not generally involve any inquiry into whether any Australian government official knew, acquiesced or connived in any aspect of the extradition process in a foreign court. Instead, s 42 is engaged once an accused person is arraigned in a court in this country. At that point, the comparison exercise contemplated by the section can be undertaken.
7. To the extent that, before the primary judge and in this Court, the applicant raised some issue about whether the applicant's "surrender by Serbia" was contrary to some principle of dual criminality or specialty then he appears, like his other grounds, to be raising an issue about a principle of Serbian law as applied by the Serbian courts. In substance, his contention was that the processes of the Serbian courts in determining the extradition proceedings were corrupted or distorted and Australian officials were somehow involved in that. He sought documents to support that contention. For the reasons given by Davies J, his actions in doing so were a textbook example of a "fishing expedition". Whether the applicant needs or is entitled to obtain documents that were presented to the Serbian courts to make an application to the District Court that invokes s 42 of the Extradition Act was not an issue raised by this application and is not a matter I express any opinion on.
8. I agree with the orders proposed by Davies J.

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