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(Dec 18, 2009) On December 15, 2009, a judge in the Supreme Court of Queensland, Australia, granted a permanent stay in the child sex case against Julian Moti, a Fiji-born Australian citizen who is a former Attorney-General of the Solomon Islands, ruling that his prosecution "constitutes an abuse of process." (R v. Moti [2009] Q.S.C. 407, available at http://archive.sclqld.org.au/qjudgment/2009/QSC09-407.pdf.) In particular, the judge found that payments made by the Australian Federal Police (AFP) to the complainant's family in Vanuatu "brings the administration of the justice system into disrepute." (Id., ¶ 88.)

The case has received considerable attention and involved diplomatic issues that were reported as straining relations between Australia, the Solomon Islands, and Papua New Guinea. (Michael McKenna & Sarah Elks, Moti Case Thrown Out as Judge Slams AFP over Witness Payments, The Australian, Dec. 16, 2009, available at http://www.theaustralian.com.au/news/moti-case-thrown-out-as-judge-slams
-afp-over-witness-payments/story-e6frg6n6-1225810753975
.) In 1997, Moti was charged with the rape of a teenage girl in Vanuatu. The case was heard in Vanuatu in 1998 and 1999 and the charges were dismissed. Following an investigation by the AFP, however, which the Queensland Supreme Court judge noted had been generated by concerns raised in 2004 by Australia's then High Commissioner to the Solomon Islands about Moti's possible appointment as Attorney-General, charges were laid in Australia under the child sex tourism provisions in the Crimes Act 1914. (R v. Moti, supra, ¶ 6.)

Moti was arrested in Papua New Guinea in October 2006, while in transit to the Solomon Islands. He was released on bail and flew to the Solomon Islands aboard a Papua New Guinean military plane. (McKenna & Elks, supra.) The then Prime Minister of the Solomon Islands, Manasseh Sogavare, repeatedly refused to extradite or deport Moti, who subsequently held the position of Attorney-General from July to December 2007. (R v. Moti, supra, ¶¶ 9-11.) When Sogavare's government was ousted in December 2007, the new government decided to deport Moti and he was arrested upon his return to Australia. (Id., ¶ 16.)

According to the Queensland Supreme Court judge, the alleged victim threatened to withdraw from the case unless the AFP brought her and her family to Australia for protection. Her father also told the AFP that he had significant debts. Following a needs assessment and legal advice, the AFP paid almost A$150,000 (about US$135,000) in installments to the alleged victim and members of her family to cover living expenses in the time leading up to the court proceedings. (Id., ¶¶ 55-58, 68.)

In seeking a stay of the proceedings against him, Moti alleged that the case was politically motivated and that the Australian government had colluded with the Solomon Islands government to arrange for his deportation to Australia in 2007, which he argued amounted to a disguised extradition. (R v. Moti, supra, ¶ 3.) The judge rejected these arguments. (Id.,¶ 45 & 47.) However, the judge considered that the payments to the alleged victim's family were of "great concern":

It raises questions about the integrity of the administration of the Australian justice system, when witnesses who live in a foreign country, where it is alleged an Australian citizen committed acts of child sex abuse, expect to be fully supported by the Australian government, until they give evidence at the trial in Australia of the Australian citizen. The conduct of the AFP in taking over the financial support of these witnesses who live in Vanuatu is an affront to the public conscience. It squarely raises whether the court can countenance the means used to achieve the end of keeping the prosecution of the charges against the applicant on foot. (Id., ¶ 87.)

Having weighed the policy considerations involved, the judge held that "the appropriate sanction for that abuse of process is to stay the indictment." (Id.,¶ 90.)

Author: Kelly Buchanan More by this author
Topic: Crime and law enforcement More on this topic
Jurisdiction: Australia More about this jurisdiction

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Last updated: 12/18/2009