http://www.austlii.edu.au/au/cases/vic/VSCA/2013/118.html
CRIMINAL LAW – Appeal – Conviction – Fair trial – Abuse of process – Accused absconded during previous trial – Convicted and sentenced in absentia – Extradited from Greece – Prior application to European Court of Human Rights – Whether surrender by Greece violated European Convention on Human Rights – Whether Australian officials complicit – Applicant presented on fresh drug charges – Stay applications failed – Accused pleaded guilty – No violation by Greece – No abuse of process – Leave to appeal refused.
CRIMIMAL LAW – Appeal – Sentence – Drug trafficking – Incitement to import – Many multiples of large commercial quantity of ecstasy, methylamphetamine – Thirty years’ imprisonment, non-parole period 22 years – Applicant head of trafficking organisation – Worst category of offending – Sentencing range – Whether sentencing judge mistaken about Crown submission on range – Whether error material – Whether different sentence should be imposed – Whether sentence manifestly excessive – Appeal dismissed.
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Ascertaining foreign law
20 Neither party raised before Whelan J any issue as to whether art 34, and the obligations imposed under that provision, had to be the subject of formal proof before any reliance could be placed upon it. When the matter came before this Court, the Attorney-General for the Commonwealth, intervening, submitted (by way of a ‘preliminary point’) that the ‘operation’ of the Convention was a matter of ‘foreign law’, and therefore a question of fact that had to be proved by expert evidence. It was implicit in that submission that, no such evidence having been led, the question whether there had been a breach of art 34 did not arise.
21 An argument of that kind proceeds along a path that requires consideration of a number of separate steps. It assumes first that the ‘operation’ of the Convention involves the interpretation of foreign law. If so, it assumes next that the contents of that law must be the subject of proof. Both assumptions are questionable.
22 It may readily be accepted that foreign law is a question of fact to be proved by expert evidence.[20] It may also be accepted that great care must be exercised in using material produced by expert witnesses about foreign law. For example, an English translation of the text of a foreign written law is not necessarily to be construed as if it were an Australian statute. Not only are there problems raised by the translation of the original text (although this is not a problem when it comes to dealing with the Convention as it provides that both the French and English versions are classified as ‘authentic’), but also different rules of construction may be applicable in the foreign jurisdiction.[21]
23 It must also be borne in mind that the Evidence Act 2008 (Vic) deals specifically with proof of foreign law. Section 174 is, relevantly, in the following terms:
174 Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a) a book or pamphlet, containing the statute, proclamation, treaty or act of State, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b) a book or other publication, containing the statute, proclamation, treaty or act of State, that appears to the court to be a reliable source of information; or
(c) a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of State; or
(d) a copy of the statute, proclamation, treaty or act of State that is proved to be an examined copy.
24 The section is plainly intended to be permissive. It is not exhaustive. There is nothing to indicate specifically that any of conditions (a)–(d) were met in this case. Nonetheless, it is clear that Whelan J had access to art 34, and referred to it in terms.[22]
25 There is another question to be considered in relation to s 174. The section, though headed ‘[e]vidence of foreign law’, speaks of ‘evidence of a statute, proclamation, treaty or act of State of a foreign country’. The term ‘foreign country’ is not defined in the Evidence Act 2008 (Vic). It is somewhat problematic as to whether the Convention itself, which is a product of the Council of Europe, and not of any of its individual member States (or the European Union),[23] meets that description.[24]