Raymond Gill v Paul Ronald Kneebone Sca [1992] ACTSC 82; (1992) 108 FLR 282 (26 August 1992)

SUPREME COURT OF THE ACT

RAYMOND GILL v. PAUL RONALD KNEEBONE
S.C.A. No. 68 of 1992
Extradition
[1992] ACTSC 82; (1992) 108 FLR 282

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Extradition - Service and Execution of Process Act - execution of warrant - terms of warrant - order for return - discharge - where unjust or oppressive to order return.

Service and Execution of Process Act 1901

Rider v. Champness (1970) 16 FLR 195

Ammann v. Wegener and Another (1973) 47 ALJR 65

HEARING

CANBERRA
26:8:1992

Counsel for the applicant: Ms P. De Veau

Solicitors for the applicant: Director of Public

Prosecutions

Counsel for the respondent: Mr T. O'Donnell

Solicitors for the respondent: Legal Aid Office
(ACT)

ORDER

The Court orders that:
1. The applicant be released on bail on condition that he surrender himself by noon the following day to the Magistrates Court at Wodonga, Victoria, there to abide any order of that Court in relation to his failure to appear as a witness on a witness summons previously served on him in proceedings in the Wangaratta Magistrates Court against Desmond Stone and Kevin Sanderson.

DECISION

This was an application under s.17 of the Service and Execution of Process Act 1901 (the Act) for a review of an order of a Magistrate sitting in the ACT Magistrates Court, by which order a warrant issued for the applicant to be taken to the State of Victoria in the custody of officers of the Victorian Police Force and to be brought before a Justice of the Peace of that State. During the hearing a number of difficulties emerged and ultimately I made an order releasing the applicant on bail conditioned that he surrender himself by noon the following day to the Magistrates Court at Wodonga, Victoria, there to abide any order of that Court in relation to his failure to appear as a witness on a witness summons previously served on him in proceedings in the Wangaratta Magistrates Court against Desmond Stone and Kevin Sanderson.

2. As it appeared during the course of the hearing that the application involved some important matters of procedure, I said that I would give reasons at a later date. These are the reasons.

3. On 6 January 1992 a witness summons was issued at the instance of Constable Paul Ronald Kneebone out of the Wangaratta Magistrates Court requiring the applicant to attend that Court at 10 a.m. on 10 February 1992 and give evidence in proceedings brought by Constable Kneebone as informant against Desmond John Stone, defendant. In early February 1992 Constable Kneebone served a copy of that witness summons upon the applicant at Beechworth in Victoria. The applicant failed to attend the Magistrates Court at Wangaratta in accordance with the witness summons. On 10 February 1992 a Magistrate at Wangaratta issued a warrant (the Victorian warrant) directed to all members of the Police Force, authorising them to arrest the applicant, whose address was shown as within the Australian Capital Territory, and to bring him before the Wangaratta Magistrates Court within a reasonable time to be dealt with according to law. There is no doubt that the Victorian warrant issued as a result of the applicant's failure to answer the witness summons.

4. On 24 February 1992 Constable Kneebone appeared before the Deputy Registrar of the ACT Magistrates Court with the Victorian warrant, and upon proof of the Victorian warrant issued an authority, referred to in evidence as a provisional warrant, which was endorsed upon the Victorian warrant. The endorsement directed Constable Kneebone, all persons to whom the Victorian warrant was directed, and, as well, all constables and police officers within the Australian Capital Territory, to execute the Victorian warrant within the Australian Capital Territory and to bring the applicant, if apprehended in the Australian Capital Territory, before a Magistrate of the Australian Capital Territory to be dealt with according to law. The endorsement was to the effect of the form in the Second Schedule to the Act.

5. Later on 24 February 1992 the applicant was apprehended in Canberra and brought before a member of the ACT Magistrates Court (the ACT Magistrate). The ACT Magistrate found the Victorian warrant proved, found further that it was endorsed pursuant to Part III of the Act and therefore "duly authenticated as directed by the said Act", and that the person apprehended was the person named in the Victorian warrant. Accordingly, the ACT Magistrate issued his warrant (the ACT warrant) authorising Constable Kneebone and all persons to whom the Victorian warrant was directed "in Her Majesty's name" to take the applicant and safely convey him to the State of Victoria and there carry him before some Justice of the Peace "to answer unto the said charge and to be further dealt with according to law". The ACT warrant was also endorsed with the words "remand in custody ... to travel by motor vehicle forthwith to Victoria, to appear tomorrow morning at the Court of Wodonga".

6. The applicant sought a review in this Court of the order of the ACT Magistrate authorising the issue of the ACT warrant. The ground of the review was that it would be harsh and oppressive to return the applicant to the State of Victoria.

7. However, during the course of the review hearing a number of matters came under consideration. The issue or receipt of process in this Territory relating to interstate witnesses is not uncommon. As the liberty of the subject is involved, it is desirable to comment upon some of these aspects of the case.

8. First, it seems to have been considered at some stage that s.16 of the Act applied to the present case. Put concisely, for present purposes, that section provides that where a court issues a subpoena or a summons to a witness, that court may, upon proof that the evidence of the witness is necessary in the interests of justice, give leave for the subpoena or summons to be served in any other State or part of the Commonwealth. It should be noted that no question arises of endorsement of the subpoena or summons. The section goes on to provide that where the person fails to attend in answer to the subpoena or summons, the court issuing the subpoena or summons may, upon proof of service and of tender of reasonable expenses, issue such warrant of apprehension as might have issued if the subpoena or summons had been served in the State or part of the Commonwealth in which it was issued.

9. In the present case the applicant was served at Beechworth, Victoria with the summons issued out of the Wangaratta Magistrates Court requiring him to give evidence in that Court. The summons was not served outside Victoria. Section 16 of the Act clearly does not apply.

10. Next, consideration needs to be given to s.18 of the Act which is in the following terms:

"Backing of warrant for execution out of the State
or part of the Commonwealth in which it was issued
18(1) Where a Court, a Judge, a Police, Stipendiary or
Special Magistrate, a Coroner, a Justice of the Peace
or an officer of a court has, in accordance with
section 16 or the law of a State or part of the
Commonwealth, issued a warrant for the apprehension of
a person, a Magistrate, Justice of the Peace or officer
of a court who has power to issue warrants for the
apprehension of persons under the law of another State
or part of the Commonwealth, being a State or part of
the Commonwealth in or on his way to which the person
against whom the warrant has been issued is or is
supposed to be, may, on being satisfied that the
warrant was issued by the Court, Judge, Magistrate,
Coroner, Justice of the Peace or officer (after proof
on oath, in the case of a warrant issued by a
Magistrate, Coroner, Justice of the Peace or officer of
a court, of the signature of the person by whom the
warrant was issued), make an endorsement on the warrant
in the form, or to the effect of the form, in the
Second Schedule to this Act authorizing its execution
in that other State or part of the Commonwealth.
(2) A warrant so endorsed is sufficient authority to
the person bringing the warrant, to all constables and
persons to whom the warrant is directed and to all
constables and peace officers in that other State or
part of the Commonwealth to execute the warrant in that
other State or part of the Commonwealth, to apprehend
the person against whom the warrant was issued and to
bring that person before a Police, Stipendiary or
Special Magistrate or a Justice of the Peace who has
power to issue warrants for the apprehension of persons
under the law of that State or part of the
Commonwealth.
(3) Subject to this section, the Magistrate or Justice
of the Peace before whom the person is brought may:
(a) by warrant under his hand, order the person to be
returned to the State or part of the Commonwealth in
which the original warrant was issued and, for that
purpose, to be delivered into the custody of the person
bringing the warrant or of a constable or other person
to whom the warrant was originally directed; or
(b) admit the person to bail, on such recognizances as he
thinks fit, on condition that the person appears at such
time, and at such place in the State or part of the
Commonwealth in which the original warrant was issued, as
the Magistrate or Justice specifies to answer the charge
or complaint or to be dealt with according to law.
(4) A warrant issued under paragraph (a) of the last
preceding subsection may be executed according to its
tenor.
(5) The Magistrate or Justice of the Peace before whom
the person is brought has, for the purposes of this
section, the same power to remand the person and admit
him to bail for that purpose as he has in the case of
persons apprehended under warrants issued by him.
(6) If, on the application of the person apprehended,
it appears to the Magistrate or Justice of the Peace
before whom a person is brought under this section that:
(a) the charge is of a trivial nature;
(b) the application for the return of the person has not
been made in good faith in the interests of justice; or
(c) for any reason, it would be unjust or oppressive
to return the person either at all or until the
expiration of a certain period;
the Magistrate or Justice of the Peace may:
(d) order the discharge of the person;
(e) order that the person be returned after the
expiration of a period specified in the order and order
his release on bail until the expiration of that period; or
(f) make such other order as he thinks just."

11. Section 18 does not deal with the issue of warrants but with their execution. Sub-section 18(1) makes provision, in the case where a warrant for the apprehension of a person has issued "in accordance with s.16 or the law of a State or part of the Commonwealth", for the execution of the warrant outside the State or Territory of issue. In the present case the Victorian warrant was issued in accordance with the law of Victoria for the failure of the applicant to attend the Wangaratta Magistrates Court in answer to the witness summons which had been served on him in Victoria. The Victorian warrant having issued, it was open to a Magistrate in the Australian Capital Territory, in accordance with sub-s.18(1), after proof of the signature of the person issuing the warrant, to make an endorsement on the warrant in the form of the Second Schedule, authorising the execution of the Victorian warrant within the ACT. For the purposes of sub-s.18(1), execution of the Victorian warrant was limited to bringing the applicant before a Magistrate or court within the ACT, and did not extend to apprehending and conveying him directly to Victoria. The removal to Victoria was authorised by the ACT warrant. The Victorian warrant, having been executed, was spent.

12. It is to be noted that no leave was required from the Wangaratta Magistrates Court for the Victorian warrant to be executed outside Victoria. The authority for execution in the ACT is to be found in the endorsement or "provisional warrant". Furthermore, nothing turns on whether it is an offence in Victoria to fail to answer a witness summons or to fail to answer bail on a criminal charge.

13. However, the Victorian warrant was confusing in its terms. It referred to the applicant as "the person to be arrested" and as "the defendant". It stated that he had been charged with four charges of "receive stolen goods" and "7 other charges". Nevertheless, the validity of the Victorian warrant has not been challenged. It appears that it could not be challenged before the ACT Magistrates Court: Rider v. Champness (1970) 16 FLR 195 per Lush J. It is doubtful whether the Victorian warrant could be challenged in this Court: Ammann v. Wegener and Another (1973) 47 ALJR 65 per Mason J.

14. Next, the ACT warrant for the return of the applicant to Victoria is couched in terms inappropriate for the circumstances of this case. It refers to the applicant as "the accused", states that he "is charged with an offence, to wit witness fails to appear" and calls upon those executing the warrant to take the applicant to a justice of the peace in Victoria "to answer unto the said charge".

15. The liberty of the subject in Australia is too important to allow these matters to pass without comment. The applicant was a potential witness, but not an accused. He was required to give evidence, not to answer a charge. As one who had on the face of it disobeyed a witness summons, it might have been appropriate for the ACT warrant to state that he was to abide any order of the court to which he was returned. It was not appropriate for the ACT warrant to state that he was "to answer unto the said charge". It appears that the applicant had been previously convicted of offences of receiving stolen property for which he had served a prison sentence. Those offences should never have been mentioned in the warrant authorising his apprehension for failing to appear as a witness in different proceedings altogether. The warrant was on a printed form although, as I understand it, it was not a prescribed form. The terms of the printed form should have been adapted to meet the circumstances of the case.

16. After the above matters were eventually clarified at the hearing in this Court, it was submitted on the applicant's behalf that it would be unjust and oppressive to return the applicant to Victoria for the purpose of giving evidence in the proceedings in the Wangaratta Magistrates Court. The applicant gave evidence that he believed that he would be required to give evidence in Wangaratta in open court, that a relative of one of the persons charged in the proceedings is a member of the Victorian Police Force and would be likely to report his evidence to someone else and that as a result his life would be in danger. He was not willing to disclose some of the details of the matters giving rise to his fears, an attitude which, as counsel on his behalf put it, is consistent with the fears which he expressed himself to entertain. Be that as it may, the applicant's attitude changed somewhat during the course of the hearing in this Court once he became aware that he could apply to the Wangaratta Magistrates Court for his evidence or some of it to be taken in closed court and when he became aware that this Court had no power to order a closed hearing in the Wangaratta Magistrates Court. Accordingly, I was not convinced that it would be unjust or oppressive to return the applicant to Victoria in accordance with the ACT warrant.

17. For those reasons the order to which I have referred was made.