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HIGH COURT RULES ABUSE OF PROCESS AND STAYS PROSECUTION OF JULIAN MOTI

The High Court of Australia has overturned a decision of the Queensland Court of Appeal and ordered that the prosecution of the former Attorney General of the Solomon Islands,...

Justin Wong

The High Court of Australia has overturned a decision of the Queensland Court of Appeal and ordered that the prosecution of the former Attorney General of the Solomon Islands, Julian Moti, be stayed as an abuse of process. The charges related to an allegation of sex with a person under 16 in Vanuatu and New Caledonia.

Australian authorities had issued a warrant for Mr Moti’s arrest in Brisbane in late 2007. At that time, Mr Moti was in the Solomon Islands.  Although Australian authorities  initially went to great lengths to have no involvement in the Solomon Islands decision to “deport”  Mr Moti,  when the Solomon Islands eventually decided to deport Mr Moti, the Australian Government assisted them by issuing a travel document for Mr Moti as well as visas for  two Solomon Island officials who accompanied Mr Moti on a plance from the Solomons to Autralia.  This was despite the Australian Government being aware that the deportation was not legal because Mr Moti had 7 days to appeal the decision to deport him before he could physically be deported.

In holding the actions of the Australian Government in assisting the unlawful deportation was an abuse of process, the High Court noted:

  1. It was a requirement to have Mr Moti tried for the offences that be be brought before a court, here the Supreme Court of Queensland
  2. Were Mr Moti to have been extradited according to law, an issue may have arisen in relation to the question of “double criminality”
  3. The concept of abuse of process extends to the use of a court’s processes in a way inconsistent with the administration of justice, ensuring that the court’s processes are used fairly by State and citizen, and used in a way to ensure that public confidence is not eroded, leading to oppression or injustice.

Because Australian officials knew that the deportation was not lawful, and because despite knowing that, Australian officials facilitated the unlawful deportation, the High Court held that continuing proceedings against Mr Moti would be an abuse of process and the proceedings should be permamntly stayed.

This is a significant decision and should act as a reminder to government and investigating officials that even assisting (as opposed to executing) an action that is unlawful can have significant ramifications at a later stage.

The full decision can  be read at: http://www.austlii.edu.au/au/cases/cth/HCA/2011/50.html