Citation: Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 20 August 2021
Judge(s): Macfarlan JA, Davies J, Beech-Jones J
Background
The applicant was extradited from Serbia to Australia in January 2019 in connection with the importation of a commercial quantity of cocaine. He was subsequently indicted in Australia on two conspiracy charges: conspiracy to import prohibited drugs and conspiracy to possess prohibited drugs.
In February 2020, the applicant issued a subpoena to the Commonwealth Attorney-General's Department (AGD) seeking four categories of documents. The AGD responded to two categories but filed a motion to set aside the remaining two (categories 3 and 4), which sought a broad range of documents relating to the extradition process and any legal advice provided to Australian authorities following the applicant's surrender.
Acting Judge Woods QC upheld the AGD's motion and set aside the disputed categories. The applicant sought leave to appeal that decision under s 5F(3) of the Criminal Appeal Act 1912 (NSW), arguing the primary judge failed to correctly apply the "legitimate forensic purpose" test.
Legal Issues
- Whether the primary judge correctly applied the "legitimate forensic purpose" test to the subpoena categories
- Whether the primary judge correctly applied the "on the cards" test, and whether he considered all contentions raised by the applicant
- Whether the documents sought were necessary to support a potential permanent stay application based on alleged misconduct by Australian officials in the Serbian extradition proceedings
- Whether the subpoena amounted to a "fishing expedition"
- Whether the applicant's arguments engaged the specialty and double criminality principles under the Extradition Act 1988 (Cth)
Decision
The Court of Criminal Appeal dismissed the appeal. The primary judge had accepted, as a hypothesis, that a legitimate forensic purpose could theoretically exist: specifically, that the applicant might seek evidence to demonstrate Australian officials colluded with or misled Serbian authorities during extradition proceedings, with a view to applying for a permanent stay on abuse of process grounds. However, the primary judge found the applicant had no actual evidence to support that hypothesis and was relying solely on inference.
Davies J, with whom Macfarlan JA agreed, concluded that the applicant's case was a textbook "fishing expedition." The applicant had identified no concrete foundation for the proposition that Australian officials engaged in any impropriety. The mere assertion that such impropriety might be revealed by the documents sought was insufficient to satisfy the legitimate forensic purpose test.
Beech-Jones J, agreeing with the orders proposed, addressed a further argument about the specialty and double criminality principles. The applicant had contended that his surrender by Serbia may have been contrary to those principles, and that documents were needed to explore whether Australian authorities had knowledge of or involvement in any irregularity. His Honour found this contention did not engage s 42 of the Extradition Act 1988 (Cth), which is directed at Australian courts at the point of arraignment, not at the validity of a surrender by a foreign court. In substance, the applicant was attempting to challenge the integrity of the Serbian court process, and seeking documents to support that challenge without any evidentiary basis for doing so.
The Court also noted that the Serbian courts had, through multiple rounds of proceedings, satisfied themselves that the prerequisites for extradition were met. No basis was identified to question that process through the subpoena.
Orders Made
• Agree with the orders proposed by Davies J
Key Takeaways
- A subpoena issued in criminal proceedings must have a legitimate forensic purpose; asserting that documents might reveal official misconduct, without any evidentiary foundation beyond inference, will not satisfy that test.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that relying on speculation alone to support a subpoena constitutes a "fishing expedition," even where the hypothetical forensic purpose (such as a permanent stay application) is theoretically recognised by law.
- A permanent stay of criminal proceedings on the ground of irregular extradition is available only in very exceptional circumstances, requiring bad faith such as the deliberate misleading of relevant authorities.
- Section 42 of the Extradition Act 1988 (Cth) is engaged once an accused is arraigned before an Australian court, at which point a comparison between the offences for which extradition was granted and the charges actually brought can be undertaken. The provision is not directed at the validity of a foreign court's surrender decision.
- Where a foreign court has conducted multiple rounds of extradition proceedings and found the prerequisites for extradition to be met, an applicant seeking documents to challenge the integrity of that process bears the burden of identifying some actual foundation for the challenge, not merely a theoretical possibility.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) ss 178A, 178BA
- Criminal Appeal Act 1912 (NSW) s 5F
- Criminal Code (Cth) ss 11.2A, 11.5, 307.1, 307.5
- Extradition Act 1988 (Cth) ss 10, 40, 42
- Law on International Legal Assistance in Criminal Matters (Serbia) Articles 16, 22
Cases
- A v Z [2007] NSWSC 899; (2007) 212 FLR 255
- Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
- Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
- Bangaru v R [2012] NSWCCA 204
- ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307
- Mokbel v The Queen (2013) 40 VR 625; [2013] VSCA 118
- Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
- Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24
- Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10
- Zirilli v The Queen [2021] VSCA 2