Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
United States of America v Green [2009] FCA 638
UNITED STATES OF AMERICA v DAVID JOHN GREEN and ALAN MOORE
NSD 326 of 2009
PERRAM J
12 JUNE 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 326 of 2009
BETWEEN: UNITED STATES OF AMERICA
Applicant
AND: DAVID JOHN GREEN
First Respondent
ALAN MOORE
Second Respondent
JUDGE: PERRAM J
DATE OF ORDER: 12 JUNE 2009
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. Order absolute in the first instance for a writ of certiorari to quash the decision made by the second respondent on 8 April 2009 to release the first respondent on bail. 2. Order absolute in the first instance for a writ of mandamus to compel the second respondent to determine the first respondent's application for bail according to law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 326 of 2009
BETWEEN: UNITED STATES OF AMERICA
Applicant
AND: DAVID JOHN GREEN
First Respondent
ALAN MOORE
Second Respondent
JUDGE: PERRAM J
DATE: 12 JUNE 2009
PLACE: SYDNEY
REASONS FOR JUDGMENT Introduction 1 The United States seeks to set aside a decision of a magistrate made on 8 April 2009 to admit the first respondent, Mr Green, to bail. Mr Green is an Australian citizen. The magistrate's decision was made in the context of the United States having obtained a provisional arrest warrant for Mr Green on 25 March 2009 and Mr Green having been arrested pursuant to that warrant some days later. 2 The United States obtained the issue of the provisional arrest warrant pursuant to s 12 of the Extradition Act 1988 (Cth). It requested the issue of that warrant on 21 March 2009 for offences relating to rape in the first degree in violation of New York penal law 130.35(2) and reckless endangerment in the first degree in violation of New York penal law 120.25. Mr Green had previously been arrested by New York city police on 15 August 2005 for those same offences. On 17 August 2005 he posted bail in the amount of $7,500 and was released from custody with the matter being adjourned for two days to 19 August 2005. 3 It would appear that on the next day, 18 August 2005, Mr Green applied for the issue of a new Australian passport on the basis that he had lost his previous Australian passport numbered L9062164. 4 Having so applied the previous day Mr Green then appeared before Judge Freed of the Criminal Court of the City of New York on 19 August 2005. Her Honour ordered him to surrender his Australian passport and adjourned the matter to 30 September 2005. On the same day, in accordance with Judge Freed's order, he surrendered an Australian passport numbered L9062164 to the New York County District Attorney's Office. This was the passport said by Mr Green in his passport application of the previous day to have been lost. 5 It is not clear whether a fresh passport was issued to Mr Green. However, Mr Green held dual nationality and was also a citizen of the United States on account of his mother's American nationality. It would appear that on 28 August 2005 Mr Green entered Australia on a United States passport. Unsurprisingly he failed to appear in the New York Supreme Court on 30 September 2005 and Soloff J of that Court then issued a bench warrant for his arrest. Nothing of any particular significance happened in the next few years other than that Mr Green's Australian passport numbered L9062164 remained at all times in the custody of the New York County District Attorney's Office. 6 Mr Green presently lives near Guyra which is in the northern tablelands of New South Wales. It would seem that on 30 January 2009 he applied for a new Australian passport on the basis that he had lost his previous Australian passport numbered L9062164, that is, the passport he had surrendered to the New York County District Attorney's Office on 19 August 2005. 7 At this point events took on a more rapid pace. On 11 March 2009, the New South Wales and Australian Federal Police executed a search warrant at Ban Ban station at Ben Lomond where Mr Green lives. During the search a number of firearms registered to him were seized. One of these, it is alleged, was kept in an unsecured state in one of the bedrooms. 8 During the search he was arrested and charged with two counts of making a false or misleading statement in relation to an Australian travel document application contrary to s 29(1) of the Australian Passports Act 2005 (Cth). On the same day, he was granted conditional bail after applying for such at the Glen Innes Local Court. 9 The United States obtained its provisional extradition warrant on 25 March 2009. On 31 March 2009 Mr Green surrendered himself at the Glen Innes police station where he was arrested by federal agents pursuant to the provisional extradition warrant. At the same time he was also charged with a firearm offence which, I assume, related to keeping a registered weapon in an unsecured location.
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