High Court of Australia

Moti v The Queen [2011] HCA 50

245 CLR 456

7 Dec 2011

Case Number: B19/2011

Before

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Catchwords

Abuse of process – Criminal proceedings - Appellant was citizen of Australia suspected of child sex offences against Australian law committed overseas - Appellant deported from Solomon Islands to Australia by Solomon Islands Government contrary to Solomon Islands law - Australian Government representatives in Solomon Islands aware, and informed superiors in Canberra, of illegality - Australian Government issued travel document for appellant and visas to Solomon Islands officials, which facilitated deportation - Appellant charged and prosecuted on arrival in Australia - Whether circumstances of appellant's removal from Solomon Islands required permanent stay of his prosecution.

Abuse of process – Criminal proceedings - Complainant and certain family members made statements about appellant's conduct to Australian Federal Police ("AFP") - Complainant and family later refused to participate in prosecution as witnesses unless given "financial protection" - AFP made significant payments to complainant and family - Payments exceeded AFP guidelines but not unlawful - Whether payments to witnesses required permanent stay of appellant's prosecution.

Private international law – Act of State - Act of foreign State - Appellant prosecuted in Australia for offences against Australian law committed overseas - Appellant asserted illegality of Solomon Islands Government's actions under Solomon Islands law in application for permanent stay of prosecution - Whether Australian court can examine, as preliminary to ultimate decision under Australian law, legality of foreign government's actions under foreign law.

Words and phrases – "abuse of process", "act of foreign State", "act of State", "deportation", "disguised extradition", "foreign law", "payment to witness", "preliminary".

Australian Passports Act 2005 (Cth) – s 9.

Financial Management and Accountability Act 1997 (Cth) – s 44.

Deportation Act (Solomon Islands) (c 58) – ss 5(3), 7.

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