In 1896 J. B. Moore, with what turned out to be prophetic insight, drew attention to the possibility of the immigration laws of the United States being utilised for the purpose of extradition:
“It is, however, worthy of notice that the immigration laws of the United States require the return to the country from which they came, of all non-political convicts. Though this measure is not in the nature of an extradition treaty, the execution of which another government may require, its full significance, as affecting the subject of extradition, has, perhaps, hardly been appreciated. With such a provision in our statutes, it is difficult to set a limit to which the system of extradition may logically be carried.”
The Collected Works of John Bassett Moore (7 vols., New Haven, 1944). Vol. I. D. 277.
With a cynicism the envy of any developing world dictator, the Australian Government in the on-going Moti saga has proved Moore’s words to be prophetic indeed, not only in the United States but across the Pacific to Australia and its neo-colonial Pacific possessions.
As I discussed in my article Moti appeal exposes mixed loyalties and judicial corruption, the Australia Government colluded with the Solomon Islands Government (‘SIG’) to circumvent Solomon Islands (‘SI’) law to achieve by subterfuge what could not be achieved at law; namely, the forcible transfer of Julian Moti QC from SI jurisdiction to Australian jurisdiction to face child sex tourism charges that Vanuatu, that had already been heard, determined and thrown out more than 13 years before.
Before going into too much detail, it is worth taking some time to consider who the key players were in this saga, what their official positions were, and who employed them. A proper understanding of these relationships is necessary in order to fully appreciate the true nature and extent of the collusion between the SI and Australian Governments in the eventually kidnapping of Moti and his dispatch to Brisbane on 27 December, 2007.
In late 2006 when it became clear that Moti was going to be made SI Attorney-General by the Sogavare Government, the Australian Government began to give considerable thought to the best way to have Moti taken out of the picture in the SI specifically and the Pacific generally. To this end there was an exchange of e-mails between SI Police Commissioner Shane Castles (an Australian Federal Police officer on secondment to the SI Police Force), SI Solicitor-General Nathan Moshinsky QC (an Australian subcontractor employed by a RAMSI funded company, GRM International Pty. Ltd. (“GRM”)), acting Australian High Commissioner, Heidi Bootle and their superiors in Canberra.
On 6 October, 2006 Bootle e-mailed a number of Australian Government officers and agencies in Canberra including the DFAT, Attorney Generals, Australian Government Solicitor and the Australian Prime Minister advising that:
“…Solicitor-General Nathan Moshinsky advised AFP Senior Liaison Officer Bond that his office foresaw difficulties in identifying an offence under Solomon Islands law which would effectively correspond to the offence included in the Australian warrant issued for Moti’s arrest. (E-mail Ashleigh MacDonald (AGD) AFPSLO of 6 October refers).Without a corresponding offence, a warrant could not be issued by Solomon Islands authorities…Section 143 (1) (a) of Solomons Islands Penal Code sets out the misdemeanor offence of “having or attempting to have unlawful sexual intercourse with any girl being at or above the age of thirteen years and under the age of fifteen years”. The offence carries a penalty of five years imprisonment. Section 143 (2), however, provides a twelve-month period of limitation for offences covered by s. 143(1) (a). Given this Moshinsky sees little success in seeking a warrant for an offence described under this section.
[…]
Grateful for any advice that AFP Senior Liaison Officer could pass to Solomon Islands authorities to address the difficulties outlined above.”
What this and other exchanges of a like manner established was that there were two core issues that rendered Moti non-prosecutable and therefore, non-extraditable: dual criminality and the Solomon Islands statute of limitations.
What is equally telling and of vital importance for what eventually transpired is the final point in the e-mail of 6 October, 2006, “[g]rateful for any advice that AFP Senior Liaison Officer could pass to Solomon Islands authorities to address the difficulties outlined above.” Clearly the Australian authorities were colluding with the SI authorities to circumvent SI law in order to facilitate Moti’s illegal rendition to Australia.
At this juncture I’m going to look at two cases with marked parallels to Moti. R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 and U.S.A. v. Tollman, [2006] O.J. No. 3672 (Sup.Ct.Jus.). Both cases deal with procedural fairness; specifically, the duty of a superior court (first articulated in the case of Bennett v Horseferry Magistrates Court) to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).
In Bennett v Horseferry Road Magistrates Court, there was a challenge to proceedings where the defendant had been brought to the UK from South Africa. It was held that it was an abuse of process for a person to be forcibly brought into the jurisdiction of the court in disregard of extradition procedures.
The principles explained in Bennett were applied in R v Mullen [1999] 2 Cr. App. R. 143, although in that case the Court of Appeal stressed that there may be cases in which the seriousness of the crime is so great, relative to the nature of a particular abuse of process, that it would be a proper exercise of judicial discretion to allow the prosecution to succeed. With all due respect to the SI and Australian Courts, I fail to see how the allegations against Moti could possibly fall into a class of crime deemed so serious as to justify the abuse of process that he has been subjected to.
While there are obvious similarities between the Bennett and Moti cases, the more relevant and recent decision of Justice Molloy in U.S.A. v. Tollman is where I will focus my attention.
In Tollman’s case Justice Molloy stayed the extradition proceedings against him, instigated by the United States Government in Canada, because of abusive conduct by American and Canadian authorities. The court held that Canadian immigration processes had been manipulated by the American prosecutor in an attempt to get a U.K. resident, temporarily present in Canada, into U.S. custody to face charges without the safeguards of an extradition proceeding. This type of conduct has been referred to, colloquially, as “disguised extradition”. Further, efforts were made to keep the fugitive in a harsh prison setting, away from his family, friends and community, in order to pressure him into abandoning his rights. After those attempts failed, the U.S. finally commenced extradition proceedings.
Perhaps of even more significance than the ultimate stay of proceedings, were some of Justice Molloy’s procedural rulings. First and foremost, Justice Molloy held that a hearing in relation to an alleged abuse of process is different in scope and purpose from an extradition hearing. She held that to properly hear an abuse motion, the judge must assess all of the evidence and make findings of fact. She noted that in some circumstances, where there is an “air of reality” to the allegations of abuse and where all of the direct evidence is within the knowledge of another person, a judge might order the cross-examination of a person located outside the jurisdiction.
As such, the Tollman decision, including Justice Molloy’s preliminary rulings, is an interesting case. In casting the abuse of process hearing as a different but related animal to an extradition committal hearing, Justice Molloy has been able to consider whether a Canadian extradition court can order the cross-examination of certain persons, including those outside the jurisdiction if necessary. Similarly, Justice Molloy suggests that a Canadian court can order a party living outside the jurisdiction to produce documents to the other party. These are revolutionary concepts in the extradition context.
The facts in Tollman have an eerie similarity to the facts in Moti. Gavin Tollman walked off Flight 947 into Toronto’s Pearson Airport planning to spend two days in Canada on business. However, Canadian authorities had other plans. Mr Tollman’s planned two-day Canadian sojourn would eventually be extended to almost two years.
Prior to Tollman’s arrival in Canada and unbeknown to him, Canadians authorities had been speaking with their U.S. counterparts, who had issued a warrant for Tollman’s arrest, alleging that the tour company CEO had conspired to avoid paying taxes of hundreds of thousands of dollars in the United states.
Justice Molloy would later rule that:
“U.S. officials, including a determined prosecutor, had contacted Canadian officials in a plot to trap Mr Tollman in Canada under harsh conditions and away from his business and family – wanting to pressure him into abandoning his rights and surrendering to their custody, without following proper procedure”
Tollman successfully fought his attempted extradition to the United States, in a landmark case, in which the judge slammed the actions of U.S. officials and made an exceptional ruling of “abuse of process,” after a trail of e-mails and notes made clear their attempt to avoid Canadian extradition laws.
Ontario Superior Court Justice Anne Molloy ruled that Tollman was able to insist on his rights largely because of his “sense of outrage, personal wealth, intelligence, stamina, power and prestige.” Noting that:
“If the system went awry for him, what hope is there for the weak, the poor and those less powerful? The answer must be in the vigilance of the justice system itself.”
Judge Molloy further found that although the Canadian Border Services Agency (‘CBSA’) officials may not have been privy to all of the U.S. “machinations,” they were willing to take actions they would not otherwise have taken if not for the U.S. request, “and are therefore complicit, at least to that extent, in the scheme.”
The facts in Tollman
In October 2003, Gavin Tollman a U.S. citizen was appointed global CEO of Trafalgar Tours; a London-based company owned and operated by members his family.
In January 2004 Tollman and his family moved to London so that he could take up his appointment as global CEO of Trafalgar Tours. While in London, he, along with other family members and company employees, were accused of conspiring to hide from the Internal Revenue Service (‘IRS’) hundreds of thousands of dollars in secret compensation paid through a bank account in the Channel Islands.
Prior to Tollman’s detention in Canada, U.S. authorities had started proceedings to have Tollman’s aunt and uncle extradited from Britain, but a warrant for Tollman’s arrest was sealed by court order after being issued in November 2004. Tollman was therefore unaware of the allegations against him when he travelled back to London via Canada after a business trip to Bermuda in January 2005.
As a consequence, he was also unaware that Canadian officials had been asked by the U.S. to detain and quickly send him into their custody, avoiding extradition rules that offer protection to an alleged offender.
Prior to Tollman’s detention in Canada, Assistant U.S. Attorney Stanley Okula had been pursuing members of Tollman’s family on related tax evasion charges since 2003, resulting in a number of protracted legal battles.
Brett Tollman, Gavin Tollman’s cousin, was sentenced in March 2004 to 33 months in prison after pleading guilty to two charges of tax fraud conspiracy. But there were problems prosecuting those members of the Tollman family who were living overseas.
Prior to Tollman’s detention in Canada, Okula had previously drafted documents for the arrest of Tollman during a planned trip to Australia. After Tollman’s planned trip to Australia was cancelled, Okula went to work again after finding out about Tollman’s planned Canadian stopover.
Okula contacted Naydene Baca, an official at the U.S. Homeland Security office in Ottawa, at least five days prior Tollman’s arrival in Canada.
Baca then discussed the case with Gord Morris, whom she described as supervisor of detention and removal at the Toronto airport. Morris apparently agreed to help on behalf of the CBSA.
A Jan. 14 e-mail between the U.S. officials said Morris confirmed that Tollman would be taken into custody when he arrived in Toronto.
U.S. officials would be notified and “begin the process of escorting him to the U.S. Port of Entry into your custody,” Baca wrote to Okula.
On Jan. 17, the RCMP gave Tollman’s arrival information to Okula, who forwarded it to Baca in Ottawa. Okula added that:
“based on the strength of our arrest warrant, we seek to have him refused entry into Canada and turned over to United States law enforcement.”
Baca wrote to Morris the next morning:
“OK, Gord let’s do it! You’ve got the info, please call me as soon as you have him and hopefully we can get him back no later than the end of the week.”
Russ Dagg, a CBSA supervisory-level employee at the airport, appeared to be the first Canadian official to bring up formal extradition proceedings with U.S. authorities, during a telephone conversation about three hours before Tollman’s plane landed.
This unexpected news troubled Okula, who sent an e-mail to Baca stating that:
“Based on my communications with you, I did not think that was the case; rather, I thought that because he was denied entry, he would be summarily turned over to the U.S.,”
Tollman was picked up as he left the plane after landing shortly after 3 p.m. on Jan. 18 and was interviewed by an immigration officer.
U.S. authorities finally started extradition proceedings three days after Mr Tollman arrived in Toronto and only after realising that their plan to bypass the Canadian legal system had failed. Tollman was released on bail 10 days after being detained by Canadian authorities.
Criminal lawyer Brian Greenspan, who had previously gained notoriety in Canada after he successfully challenged the extradition of four Canadian men, from Canada, wanted in the United States on fraud charges relating to a telemarketing scheme, said that proving abuse in extradition cases is as much about luck as anything else, noting that:
“There’s not a science to it, and there’s not a formal investigative procedure that would yield the results. You usually have to be lucky and ask the right question at the right time.”
Tollman’s lawyers were lucky to find a trail of messages that made the plot clear. Their actions, “whether with the willing or unsuspecting co-operation of the Canadian authorities, are abusive,” Judge Molloy wrote in her reasons for judgment.
Judge Molloy further wrote in her reasons for judgement that:
“Canadian authorities, meanwhile, didn’t appear to have any concerns of their own about Mr Tollman’s presence in the country, but acted at all times solely at the request of the U.S. authorities and on the strength of the U.S. warrant for his arrest… [Tollman] armed with intelligence, stamina, a social position of power and prestige, and enormous personal wealth, was able to insist on his rights…Very few people would have been able to do what he has done.”
Judge Molloy was certainly not wrong in her final observations in the Tollman case. Her Honour’s observations about the interconnectedness of wealth and ‘justice’ echo issues I have previously raised in my article “You can only have as much justice as you can afford”. That being said, the issue I’m looking at here is that of “disguised extradition”.
In Tollman’s case the Canadian courts stayed the extradition proceedings against him, instigated by the United States Government in Canada, because of abusive conduct by American and Canadian authorities.
What the abusive conduct consisted of, was a plan, which seems to have originated in the mind of Okula, to manipulate the Canadian immigration processes in order to facilitate an attempt by a U.S. prosecutor to get a U.K. resident, temporarily present in Canada, into U.S. custody to face charges without the safeguards of an extradition proceeding.
It appears that Moti’s lawyers may also have been lucky, in that, they also found a trail of messages that made the Australian Government’s plan clear. A plan, which seems, to have originated in the mind of AFP SLO Bond or his superiors in Canberra, to manipulate the SI immigration processes in order to facilitate an attempt by Australia to get an SI resident, into Australian custody to face charges without the safeguards of an extradition proceeding.
Unfortunately for Moti, that is where the parallels with Tollman end. Unlike Canada; which is a developed first world nation, possessed of a large population and a fully functioning legal system, the SI is a struggling micro-state held to ransom by its neo-colonial master Australia. A master who controls the sinews of power in its ‘colony’ via the judicious placement of its own people in positions of power, including Police Commissioner and Solicitor-General. It is for this reason that Moti finds himself in Australia, awaiting trial on charges that were heard, determined and thrown out more than 13 years before.
That being said, it is open to the High Court of Australia to apply the principles explained in Bennett, namely that one of the duties of a superior court is to oversee executive action so as to prevent the State taking advantage of acts that threaten either basic human rights or the rule of law (including international law).
In an entry in his diary made on 24 December 2007, AFP Agent Bond wrote: “7 days to appeal the deportation.” Moti was denied his legal right to challenge or appeal his deportation order, a right that was well known by the AFP who conspired with the RAMSI-controlled, newly-installed Sikua Government to deny Moti his rights both as a deportee at SI law and as an asylee at international law.
While on the subject of the newly-installed Sikua Government it is worth recalling that on 26 December 2007 (the day before Moti was kidnapped from his home in Honiara and dispatched to Brisbane), the woman who the AFP has recruited as the alleged “victim” of the child sex tourism charges against Moti sent an SMS message to her AFP “minder” in Brisbane, Federal Agent Sally MacDonald. That message was reproduced in its entirety in MacDonald’s sworn statement filed in the Queensland Supreme Court. It was an ultimatum to the AFP that unless the Australian Government met her demands to relocate her and her entire family to Australia and place them in a witness protection program she would:
“… denounce that I may have been used as a tool by the Australian Government for political and neo colonial reasons … The aim of all this was to put in the Government of your choice in the Solomons. Consequently I lost everything.”
This raises the rather sensitive question of the extent to which the AFP went in order to facilitate Moti’s “disguised extradition” to Australia.
These are clearly issues for the courts to rule on. Though as an Aboriginal Australian; I wonder if my colonial master, Australia, is going to clasp J. B. Moore’s cynicism of 1896, or is it going to embrace the ‘rule of law’ and look beyond its own selfish interests?
It will be interesting to see which way the HCA goes with Moti’s appeal. As you say in your article will they go with Moore or the ‘rule of law’? This decision has profound implications for all those who are being oppressed in their own country by corrupt officials and officials. This corruption goes well beyond the AFP.
Andy I tend to agree with you. The way the HCA jumps on the Moti issue will have profound implications for the way the so called ‘rule of law’ operates in Australia. As Australia moves further and further to the right, the role of the judiciary in protecting our basic human rights becomes more and more important.
This issue is only superficially about Moti. The underlying and indeed the core issue is, is Australia a society governed by the ‘rule of law’ or are we as a society nothing more than an oligarchy masquerading as a democracy? This issue has the potential to impact on the lives of every singal person living in our country.
Does the ‘rule of law’ extend to politicians lying during election campaigns? It would appear not, the very reason why it is important that our judges embrace as wide a definition as possible of what their role is in protecting our basic rights and freedoms.
Hello Susan, I’m also sick and tired of listening to lying politicians. Its about time they were held accountable, at law, for the lies they tell at election time. Yes the HCA does need to embrace the idea that it has a very big role to play in protecting our basic rights and freedoms.
Political accountability, now that is a radical concept. Nicola that is all well and good in theory, but don’t forget that politicians appoint the justices to the HCA, are they really going to bite the hand that feeds them? I think not!
David in all my time in the public service I did not see anything even remoatly resembling public sector accountability. Though, I hope that the HCA is above petty politics and takes their role as the guardians of our democracy seriously. If not, we are all in trouble – black and white alike!
Public Sector accountability, All’ah be praised. Ur, sorry I didn’t finish reading your comment Jen. Though if All’ah wills it, public Sector accountability wil be! I don’t know enough about the HCA to comment further. I hope for the sake of Australia’s democracy that the HCA is above petty politics.
The whole argument, indeed the whole of Blak and Black comes down one core issue the ‘rule of law’. Are we as a nation subject to the ‘rule of law’ or are we at the mecy of any ‘red neck’ public servant or police officer who happens to cross our path? If the latter, which is what bakchos is suggesting, then our country is finished. All you need do is look at WA which is again discussing the option of succession. Cane you really blame them?
Its not just the public sector. The problem runs deeper than that. It comes to the acceptance of personal responsibility. We all talk about our rights, but what about the responsibilities that attach to those rights? It starts at school and stays with people throughout their lives. There is no such thing as a benevolent dictatorship.
Perhaps we are all living in interesting times?
Paula, perhaps so!
Yes Paula, maybe so
Guys isn’t ‘may you live in interesting times’ a Chinese curse?
The full “curse”: May you live in interesting times/May you come to the attention of those in authority/May you find what you are looking for (alternative, May your wishes be granted.) So says Wiki!