suing for exposure "to the prospect of the imposition of the death" (1 Viewer)

[Frigid]

interesting... does anybody know what law this falls under?

Bali 9 duo sue police over death penalty

Two of the Bali Nine accused drug smugglers are taking legal action against the Australian Federal Police.

Renae Lawrence and Scott Rush have launched action in the Federal Court in Darwin, seeking records and documents that led to their arrest in Bali in April.

The pair, through their lawyers, claim the AFP provided assistance to the Indonesian police that led to their arrest, "which thereby exposed them to the prospect of the imposition of the death penalty".

In an application to the court, the pair claim that under a treaty between Indonesia and Australia, Australian authorities must refuse a request for assistance if it involves charges where the death penalty may be imposed, unless there are special circumstances.

Lawrence and Rush launched an application for preliminary discovery, seeking records, notes, internal memorandums and any other documents where the Indonesian police asked for assistance in the investigation against the pair.

The application said that following discovery, the pair may seek "declaratory relief as to the denial of procedural fairness" and the legality of the AFP's conduct under Australian law.

The matter is due to be heard on Monday in Darwin.

Lawrence and Rush were two of four Australians arrested and detained at Denpasar International Airport on April 17 just prior to boarding a flight to Sydney.

Four other Australians were arrested at the Melasti hotel in Bali, and another Australian, Andrew Chan, was detained on the Qantas plane.

All nine are being held in Kerobokan Jail in Bali and are due to face trial on drugs charges in the Denpasar District Court next week.

 

[hfis]

If, indeed, it falls under any law at all. I'm not sure any legislation has actually been enacted in light of the treaty, but now I'm curious.

Bah, looks like I'll be trawling AustLII for the next hour or so.

 

[hfis]

Never mind, didn't take as long as I thought:

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Specifically, s 8(1A):

(1A)
A request by a foreign country for assistance under this Act must be refused if it relates to the prosecution or punishment of a person charged with, or convicted of, an offence in respect of which the death penalty may be imposed in the foreign country, unless the Attorney-General is of the opinion, having regard to the special circumstances of the case, that the assistance requested should be granted.

 

[Frigid]

and then it falls under tort of breach of statutory duty i believe?

but then wtf man... the 'victims' will be dead. how can you compensate for that!?

 

[MoonlightSonata]

Never mind, didn't take as long as I thought:

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Specifically, s 8(1A):

Nicely researched

 

[santaslayer]

That's really interesting. Looks like they have a strong case as well.

 

[xeuyrawp]

Never mind, didn't take as long as I thought:

Mutual Assistance in Criminal Matters Act 1987 (Cth)

Specifically, s 8(1A):

wtf, you found that in 7 minutes...

 

[santaslayer]

wtf, you found that in 7 minutes...

He goes to UoW.





















sorry.

 

[MiuMiu]

Haha you couldn't help yourself could you Santa. 'UOW reprezent!' hehe

Very very interesting though, I wonder what will happen. Considering they can't get them out of Bali anyway...

 

[ManlyChief]

That's really interesting. Looks like they have a strong case as well.

Do you really think so?

From my - albeit cursory and thus probably poorly thought through - glance at the statutory provision, it seems that the matter would turn on the definition of the special circumstances in which the A-G is able to grant permission in cases involving the death penalty. I cannot seem to find any authority interpreting this point, other than the interpreation of ss 10, 12 and 14 generally in Bollag & Bond v Attorney-General of the Commonwealth & Director of Public Prosecutions (1997) 149 ALR 355.

I would imagine that Mr Ruddock would argue that the special circumstances are purely discretionary and as such he has fulfilled his statutory duty to the standard required.

Good grief it's been so long since I did torts.

It's all very interesting.

 

[Lazarus]

That'd largely be an administrative law matter, I think.

The Attorney-General's exercise of discretion would be reviewable in the courts for jurisdictional error, but its scope is quite broad - could be some evidentiary difficulties there.

Also, they're only seeking "declaratory relief", which is nothing more than a statement as to whether the conduct of the AFP was lawful or not. No damages or anything like that. But I suppose that such a declaration could be used to invalidate their arrest and any subsequent proceedings.

 

[Demandred]

and then it falls under tort of breach of statutory duty i believe?

but then wtf man... the 'victims' will be dead. how can you compensate for that!?

Punitive damages?