December 8, 2011

Yesterday’s decision to trash the prosecution of a former Solomon Islands attorney general – though the end of a brutal four year battle for Julian Moti – may still prove an injustice by thwarting the full expose of the sordid ignominy out of which the affair arose.
The High Court emphatically pronounced that “Canberra” was complicit in illegally shoving Moti into a seat that had been “freed up” on the 3.10pm Solomon Airline 737 service from Honiara to Brisbane on 27 December 2007. For that reason his subsequent indictment in the Queensland Supreme Court for sex-tourism crimes was tainted with an “abuse of process” and will be quashed.

The government’s case – it can only fairly be described as exactly that: a prosecution with all the worst features of Executive interference – spectacularly collapsed when it failed to clear the first hurdle, albeit that it took the scrutiny of three appeals for the debacle to materialise.

Revelations of the facts relating to other defence arguments and issues will prove equally shameful, if they can ever be fully brought to light. First, the High Court left open the question for others to decide whether the curious payments of living expenses by the thoroughly discredited Australian Federal Police to crown witnesses would unfairly colour their evidence: “That issue could be the subject of suitable instructions to the jury” if the trial were to proceed.

Second, the law under which Moti was charged was enacted in 1994 to prevent Australian tourists and ex-pats going unpunished for child sex crimes committed in another country when that other country was unwilling or unable to prosecute.

It was never intended to be misused in the way it was: to harass a resident of another nation and where the judicial process had already been engaged to determine the alleged offence. If Moti was resident elsewhere at the time – as he was – on what basis can Australia claim to have properly interfered? If the events were already been dealt with by a court elsewhere – as they were – why should he have been compelled to defend the charges again in Australia?

Third, Moti was a central figure in the government of former PM Sogovare that thumbed its nose at the Howard government’s do-what-we-say agenda in the Pacific. The popular unrest that brought Sogavare to power was seen by Australia to be against its interests and those of the Regional Assistance Mission (RAMSI) that was predominately led by the AFP.

Moti himself was seen as an antagonist of the new Solomon Islands PM who took power on 20 December 2007,  just seven days before the  illegal abduction. The Solomons’ government – with whom Australia was found to have conspired – “had more than once” been told by Canberra that it wanted Moti removed.

The extra-territorial application of a domestic law is controversial in itself. But to rope-collar a minister of a foreign government and extend a foreign law to depose him in his domicile to aid the establishment of a regime more favourably disposed to becoming a client state? It is nothing other than Executive abuse in the extreme, so abhorrent, that it must be fully exposed and the perpetrators themselves offered a taste of justice.

Fourth, what exactly was the mission of the AFP in the latter part of 2007? To what extent did it operate as a para-military organ of arrogant and even illegal Australian foreign policy?

Abuse – and possibly, crimes – have been committed against Mr Moti but also against the Solomon Islands people. Not to mention the ultimate integrity of this nation.

The full story must be told: what is our Bay of Pigs must not be allowed to brand us as Ugly Australians in the many eyes of the region.

Moti v The Queen [2011] HCA 50 (7 December 2011)

Categories: Opinonian , Litigation & Law Practice , Civil procedure

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