On Friday November 6, 2009, after an 11-day hearing, her Honour Justice Debra A. Mullins, of the Queensland Supreme Court, reserved her decision in relation to a permanent stay application filed by Julian Moti, QC, against the Commonwealth Director of Public Prosecutions.

It will be recalled that the Howard government had demanded from the Solomon Islands government Moti’s return to Australia. Moti had been the Solomon Islands’ Attorney-General at the time.

Downer alluded to charges that Moti had faced about 1997 in Vanuatu while Moti was practising as a lawyer there. The charges had been determined in Moti’s favour by the Vanuatu judicial system, led by several Australian Federal Court and New Zealand High Court Judges as Judges of Appeal.

Moti had then been represented by Ian Barker QC, of the Sydney Bar (and Lindy Chamberlain fame).

In the Queensland “Abuse of Process” proceedings Moti is represented by two Melbourne silks. Representing the Commonwealth Director of Public Prosecutions and opposing Moti’s stay application is John Agius, SC, from the Cole Inquiry.

Towards the end of the 11-day preliminary hearing, Justice Debra Mullins expressed grave concerns in relation to “witness payments” totalling more than $130,000 ( and continuing) made not only to a key prosecution witness but also to several members of her family: all foreign nationals domiciled in Vanuatu.

Justice Mullins: “And it’s not a matter, if one could test it this way, where the average citizen of Australia, learning of these sorts of facts, [the payments made by the AFP to the witness]  would really feel entirely comfortable about it.”

Agius from the bar table said: “The problem is that experience or lack of experience tells us that it’s probably never had to be considered before. Certainly it’s — I think I can confidently say it has never been considered before in the administration of criminal justice during the days of the Commonwealth Director of Public Prosecutions, because I have been practising extensively, very often on instructions from the director since that time and I’ve never seen it, and our collective experience, our collective office experience, has never seen the like of this before”. (Transcript of proceedings of November 6, 2009, before Mullins J).

On December 28, 2007, the Sydney Morning Herald reported:

Julian Moti was finally behind bars in Australia last night; just hours after police sirens sounded the death knell in his long fight against deportation from the Solomon Islands.

Similar vivid descriptions of Moti’s past travails had featured in The Australian and other mainstream media.

There has been no coverage of the sensational facts that, as Justice Mullins noted, would cause concern to the average Australian citizen.

Although being more renowned for her expertise in commercial matters, Debbie Mullins in her earlier life at the bar, had published an article titled The Legal Consequences of the Receipt of a Bribe.

But the payments issue is the least interesting aspect of Moti’s stay application. The public is entitled to be informed of the way their interests are being represented overseas by “DFAT Cats” and their AFP cousins. Allegations of political interference in the affairs of neighbouring sovereign states and downright unlawful conduct on the part of AFP and DFAT officers have been raised by the two senior counsel representing Moti.

Whether Moti was deported, extradited or kidnapped from the Solomon Islands to the Brisbane City Watchhouse on December 27, 2007 remains a moot point. One fact is established beyond doubt: Moti’s “extraction” was in direct breach of a Solomons Island court order that, in terms, enjoined Moti’s removal from its jurisdiction. Ironically, the DFAT and AFP witnesses claim absolution for having, at the time, relied on advice provided to them by a local private lawyer about to be made the new Attorney-General replacing Moti!

It now cannot be disputed from Commonwealth documents exhibited in the Queensland proceedings, that in 2004 the AFP considered charging Moti under the Australian S-x Tourism Act, not at the request of the alleged victim from Vanuatu but at the behest of his excellency Patrick Cole,  then Australian High Commissioner to Honiara (Solomon Islands). Why?

According to documents reluctantly produced by the Commonwealth late in the proceedings:

Some Ministers [in the Solomon Islands government] want to appoint JM [Julian Moti] to be our Attorney-General.  Naturally I’m trying to block it

The word: “our” used by Cole may be informative: the Australian diplomat was there speaking about the Solomon Islands Attorney-General, not Australia’s.

Cole’s statement was made in 2004 before Howard had publicly declared: The Pacific is our backyard and we are the country that has the prime responsibility for looking after the security exigencies as they arise.”

The plan to prosecute Moti was shelved later in 2004, when someone else was made Attorney-General.

In 2006 Moti was actually appointed Attorney-General.

Documents produced by the Commonwealth reveal that shortly before the appointment, Cole had again asked the AFP to prosecute Moti and to leak news of the intended prosecution: Why?

“The consequences [of Moti QC being appointed Attorney-General for the Solomon Islands] could be disastrous for Australians and Australia’s interest and RAMSI”; other documents reveal Cole to have opined.

Cole was expelled by the Sogovare government on  September 12, 2006.

Shortly after Cole’s expulsion, the Australian taxpayer-financed the publication, in three Solomon Islands newspapers, of a letter penned by Downer inviting Solomon Islanders to protest against their own government.

While Moti was being “escorted” to Brisbane by what could be described as the “RAMSI Express”, an AFP senior officer in Canberra (known as “Aussie”) sent a congratulatory cable to AFP officer Bond responsible for the operation in the Solomon Islands for a “job almost well done”.

Clearly “abuses of process” arguments are lately becoming more fashionable in Australia whereas it has been well understood and applied in England for some time.

Justice Mullins has lectured her “sibling judges” about “judicial writing in an electronic age” and will no doubt be aware of such international developments.

The Mabo case originated in Queensland. Will Queensland now play a vital role in developing “abuse of process” legal principles in Australia?

Peter Fray

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