Re Martin John Forrest v Peter Maurice St Leger Kelly, Special Magistrate and the Honourable Michael Duffy, Attorney-General of the Commonwealth of Australia [1992] FCA 28; 65 Extradition 105 ALR 573; (1992) 34 FCR 74 (6 February 1992)

FEDERAL COURT OF AUSTRALIA

Re: MARTIN JOHN FORREST
And: PETER MAURICE ST LEGER KELLY, SPECIAL MAGISTRATE and THE HONOURABLE
MICHAEL DUFFY, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
No. S G99 of 1991
FED No. 65
Extradition
105 ALR 573
(1992) 34 FCR 74

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Wilcox(1) and Einfeld(1) JJ.

CATCHWORDS

Extradition - Application to extradite person to United States - United States indictment presented prior to commencement of Extradition Act 1988 - Whether magistrate acted correctly in dealing with the matter pursuant to the 1988 Act - Adjournment of extradition hearing at request of Director of Public Prosecutions because of doubt as to sufficiency of evidence - Whether Director entitled to tender, on resumption of hearing, evidence to cure non-minor deficiencies in his case - Delay by United States in requesting extradition - Whether magistrate correct in holding that he had no power to refuse application for extradition because of that delay and any consequential hardship sustained by extraditee - Discretion of Attorney-General to refuse extradition because of delay.

Extradition Act 1988, ss.19, 22

Extradition (Repeal and Consequential Provisions) Act 1988, ss.3, 8

Extradition (Foreign States) Act 1966, s.17

HEARING

SYDNEY
6:2:1992

Counsel for the Appellant: S. Tilmouth QC and A. Crocker

Solicitors for the Applicant: Ward and Partners

Counsel for the First and
Second Respondents: S. Vorreiter

Solicitors for the First and

Second Respondents: Director of Public Prosecutions

ORDER

The appeal be dismissed.

The appellant pay to the respondents their costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This appeal challenges a decision of a Judge of the Court, O'Loughlin J., confirming a decision of a Special Magistrate, the first respondent Mr P.M. St Leger Kelly, ordering the appellant's surrender for extradition. The order was made pursuant to s.19 of the Extradition Act 1988 upon an application by the Director of Public Prosecutions following a request for extradition by the United States of America. His Honour specified two offences in relation to which the appellant was to be surrendered viz:

"(a) Count One charges that on or about June 7, 1986, the defendant
Martin J. Forrest, in the District of Hawaii, having been
appointed custodian and being an officer of the debtor in
possession of the estate of Forrest Ranch Inc., which had entered
into Chapter 11 bankruptcy proceedings in federal court at
Honolulu, Hawaii, did knowingly and fraudulently appropriate to
his own use opals of a value in excess of $5,000 and of an
approximate weight of 18,000 carats, which had come into his
charge as custodian and officer of the debtor in possession of the
estate of Forrest Ranch, Inc. in violation of Title 18, United
States Code, Section 153;
(b) Count Two charges that on or about June 8, 1986, defendant Martin
J. Forrest, did transport in foreign commerce from Honolulu,
Hawaii, within the District of Hawaii, to Australia, opals with an
approximate weight of 18,000 carats, which were worth in excess of
$5,000, knowing the same to have been stolen, converted or taken
by fraud, in violation of Title 18, United States Code, Section

2314."

2. In accordance with the usual practice, Mr Kelly took no part in the hearing before O'Loughlin J. or before us. But counsel appeared on behalf of the second respondent, the Commonwealth Attorney-General, to support the order which he had made.

3. Although other matters were put to O'Loughlin J., in this Court only three points were put by counsel for the appellant in support of their submission that the learned magistrate erred in ordering their client's surrender. None of these points depends upon the details of the factual allegations made in the extradition papers. So we need not refer to them. In order to deal with the appellant's submissions it is, however, necessary for us to note some dates in the history of the matter.

4. The events which give rise to the charges against the appellant are said to have occurred on 7 and 8 June 1986 in Hawaii, United States of America. On 31 March 1987 a grand jury sitting in Hawaii found an indictment against the appellant. On the same day a warrant for his apprehension was issued by the United States District Court, District of Hawaii. On 1 December 1988 the Extradition Act 1988 commenced to operate. On 21 September 1990 the United States court issued a second warrant. Apparently, there was a question whether the original warrant had been executed in such a manner as to comply with the requirements of the Treaty on Extradition between Australia and the United States of America.

5. On 13 February 1991 the United States government delivered to the Australian government a formal request for the appellant's extradition. On 10 May 1991 a provisional warrant was issued by a South Australian magistrate, Mr D.C. Gurry. The appellant was apprehended pursuant to that warrant. On 3 July 1991 Mr Kelly commenced to hear the Director's application for a surrender order. The application was contested and the hearing extended over the following two days. At that stage, on the application of the Director, the further hearing of the matter was adjourned until 12 August. Upon the resumption of the hearing, the Director presented further documentary evidence. In the view we take, it is not necessary for us to consider whether, in the absence of that material, a surrender order could properly have been made. But the further evidence was extensive. It is clear that it played a significant part in the decision of the magistrate given on 16 August 1991, and of O'Loughlin J. on his review of that decision.

6. The first point taken by the appellant is that the magistrate erred in dealing with the matter under the Extradition Act 1988. His counsel contend that, by reason of the Extradition (Repeal and Consequential Provisions) Act 1988, the magistrate should have applied the Extradition (Foreign States) Act 1966, legislation which was repealed upon the commencement of the 1988 Act. It is common ground that he did not and that, if the 1966 Act did apply, the surrender order ought to be set aside.

7. Section 3 of the Repeal and Consequential Provisions Act contains a definition of the term "former Act person". Paragraph (b) of that definition includes a person in relation to whom "proceedings had commenced ... for the purposes of subsection 17(6)" of the 1966 Act before the commencement of the 1988 Act and, if the 1988 legislation had not come into operation, the 1966 Act would have had some further application in relation to the person's surrender, or possible surrender. It is common ground that, absent the two 1988 statutes, the 1966 Act would have applied to the appellant.

8. The appellant concedes that no proceedings were commenced against him in an Australian court before the commencement of the 1988 Act. Indeed, the request for extradition had not then been received. But he says that the action taken in Hawaii before the commencement of the 1988 Act, namely the presentment of the grand jury indictment and the issue of the original warrant, constitute relevant "proceedings".

9. In our opinion this submission must be rejected. It is true, as the appellant contends, that criminal proceedings are "commenced" well before trial. In R v Hull (1989) 16 NSWLR 385 at 390 Gleeson C.J. spoke of criminal proceedings being "initiated" by arrest, information or the issue of a summons. In Alberta and Craig (1991) 53 A Crim R 33 at 39 the Court of Appeal treated his Honour's words as guidance in determining the point of time at which criminal proceedings are "instituted". We are content to take the same course in relation to the word "commenced" and to agree that it might properly be said that proceedings were commenced against the appellant when the Hawaii grand jury found an indictment against him. But the relevant definition in the Repeal and Consequential Provisions Act does not refer to the commencement of proceedings simpliciter. It refers to the commencement of proceedings "for the purposes of subsection 17(6) of" the 1966 Act. In determining whether particular proceedings answer that description, it is necessary to look at that subsection.

10. Section 17 of the 1966 Act was entitled "Proceedings after Apprehension of Person". The section dealt with the action to be taken after a person is apprehended under a warrant issued by an Australian magistrate. The person was to be brought before a magistrate as soon as possible (subs.(1)). The magistrate might remand the person, either in custody or on bail. Subsections (2) to (4) dealt with such remand. Subsection (5) provided for the release from custody, or discharge from recognisances, of a person apprehended under a warrant issued otherwise than pursuant to an authority of the Attorney-General and in respect of whom the magistrate did not receive an appropriate notice of requisition for surrender. Where the person had been apprehended under a warrant issued pursuant to an authority of the Attorney-General or the requisite notice was received, one of two courses had to be taken. If the person consented to being surrendered to the foreign state, subject to certain procedures the magistrate was required to commit the person to prison to await the warrant of the Attorney-General for the surrender of the person to the foreign state (subs.(5A) to (5C)). If consent was not given, subs.(6) applied. That subsection directed that, if certain documents were produced to the magistrate and the magistrate was "satisfied, after taking into account any evidence properly adduced by the person, that the person is liable to be surrendered to the foreign state that made the requisition for the surrender", he or she must commit the person to prison to await the Attorney-General's warrant for surrender or grant bail pending the warrant. Otherwise the magistrate was obliged to order the person's release. Subsections (6A) to (8) are provisions ancillary to subs.(6).

11. As this analysis demonstrates, s.17(6) provided a regime for the determination of contested extradition applications. Proceedings under that subsection were "commenced" not earlier than the time when the person was apprehended in Australia under a warrant issued pursuant to the authority of the Australian Attorney-General or the magistrate received from the Attorney-General a notice of requisition for surrender. The proceedings referred to in para.(b) of the definition of "former Act person" in the Repeal and Consequential Provisions Act are those proceedings, not criminal proceedings instituted within the requesting country. If it had been intended that the definition should extend to people against whom general criminal proceedings had been commenced, the limiting words "for the purposes of subsection 17(6) of that Act" would have been inappropriate.

12. This interpretation of the definition is supported by s.8(2) of the Repeal and Consequential Provisions Act which contains transitional provisions applicable where, amongst other things, before the commencement of the 1988 Act, a warrant was issued pursuant to s.16 of the 1966 Act or a requisition was made to the Attorney-General for surrender of the person under that Act and "the person is not a former Act person". On the appellant's argument, these cumulative requirements could never be fulfilled. For there to be a warrant or requisition, there would necessarily have to be earlier criminal proceedings in the requesting country.

13. The conclusion which we reach as a matter of language is consistent with the evident purpose of the definition. Parliament was apparently concerned to avoid the disruption to individual cases which would occur if the legislation governing extradition applications was changed during the period when a particular person was before the Australian courts. It was important that a single statutory regime govern the handling of proceedings against a particular person from the time when the extradition application was first able to be pursued against the person in the magistrate's court until its disposal. But it was immaterial to that purpose whether the foreign indictment happened to have been presented before or after the repeal of the 1966 Act.

14. The second matter argued on behalf of the appellant is that the magistrate erred in admitting the evidence tendered by the Director of Public Prosecutions during the hearing in August. The appellant does not contest the relevance of this material, nor its admissibility under the general rules of evidence. The claim that the material was inadmissible depends solely upon s.19(4) of the Extradition Act 1988. That subsection reads:
"(4) Where, in the proceedings:

(a) a document or documents containing a deficiency or
deficiencies of relevance to the proceedings is or are
produced; and
(b) the magistrate considers the deficiency or deficiencies to
be of a minor nature;

the magistrate shall adjourn the proceedings for such period as the magistrate considers reasonable to allow the deficiency or deficiencies remedied."

15. As counsel for the appellant concede, there is nothing in s.19(4), or elsewhere in the 1988 Act, dealing with the admissibility of evidence adduced after an adjournment. Nor do they make any complaint about the decision of the magistrate to grant an adjournment on 5 July. They point out that the adjournment on that day was granted at the request of counsel for the Director, apparently because of his concern about the sufficiency of the evidence already adduced. They assert that his concern stemmed from deficiencies which could not be described as minor, as is evidenced from the nature and extent of the evidence tendered upon the resumption of the hearing in August. Although that position has not been demonstrated to us, for the purposes of this point we are prepared to assume that there were non-minor deficiencies in the Director's case on 5 July. The critical step in counsel's argument is that which follows. They say that, because s.19(4) contemplates the admission after an adjournment of evidence to remedy a deficiency of a minor nature, it impliedly excludes the admission of evidence rectifying a non-minor deficiency. In effect, counsel treat s.19(4) as a code regulating the admission of evidence after an adjournment.

16. There is no substance in this argument. The function of s.19 is the same as that fulfilled under the 1966 Act by s.17: to regulate contested surrender applications. But it does not purport to deal exhaustively with all aspects of a surrender hearing. For example, it does not deal exhaustively with the magistrate's discretion to grant or refuse an adjournment. A proceeding might need to be adjourned for any one of a host of reasons, other than a minor deficiency of evidence. Neither does it deal with the admissibility of evidence after an adjournment. Section 19(4) deals only with a very special situation, a case where one or more documents contains a relevant minor deficiency. It is apparent that Parliament was concerned to ensure that, in such a situation, an opportunity would be provided to remedy the deficiency before the proceedings were dismissed. For that purpose, it was prepared to override the magistrate's usual discretion as to the conduct of the proceedings by commanding that, in that special situation, there had to be an adjournment. Note the mandatory words: "shall adjourn". However, except in relation to that special situation, the usual position was to apply. The magistrate was to be free to conduct the proceedings as he or she saw fit, exercising all usual discretions on matters such as adjournments and receiving all admissible evidence.

17. The final submission for the appellant relates to the refusal of the magistrate to entertain an argument that the proceedings should be dismissed as an "abuse of process". Counsel explained to us that they did not suggest that the United States authorities were insincere in requisitioning for the surrender of the appellant in order to try him on the two charges specified in the indictment or that the Australian Attorney-General and the Director of Public Prosecutions were doing otherwise than acting in good faith to implement that request. Their contention was that the magistrate should have taken into account the delay which had ensued since the grand jury indictment, and evidence which they would have wished to adduce as to the hardship in extraditing their client some four years after that event.

18. The term "abuse of process" might perhaps be thought inapt to describe a situation where proceedings are taken bona fide for the purpose prescribed by a statute albeit after considerable delay. But there is no doubt about the competence of trial courts to stay criminal proceedings whose continuation would be unfair to an accused person and the tag "abuse of process" has been used to describe a case where delay has caused unfairness: see Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.

19. The provisions of the Extradition Act 1988 which apply to this case confer no power on a magistrate to dismiss an application for the surrender of a person on the ground that it represents an abuse of process or that delay would cause any trial in the requesting country to be unfair. Delay is relevant in relation to extradition to New Zealand, a matter dealt with in Part III of the 1988 Act. Section 34(2) provides that, if the magistrate is satisfied that "because ... a lengthy period has elapsed since that offence was committed or allegedly committed; or for another reason, it would be unjust, oppressive or too severe a punishment to surrender the person to New Zealand, the magistrate shall order that the person be released". We do not know why a similar provision was not inserted in s.19, the section of the Act dealing with the magistrate's functions in connection with extraditions to all other countries. But it was not. Section 19(1) provides that where the magistrate determines that the person is "eligible for surrender", he or she "shall" by warrant commit the person to prison. A person is "eligible for surrender", according to s.19(2), if the necessary documents are produced to the magistrate, the magistrate is satisfied that the conduct they allege would constitute an offence within the part of Australia where the proceedings are being conducted, and the person does not demonstrate "that there is an extradition objection in relation to the offence". Section 7 defines "extradition objection" in terms which make no reference to abuse of process or delay.

20. The view that a magistrate determining an application for surrender would not normally be concerned with delay is supported by a decision of the Supreme Court of Canada, Republic of Argentina v Mellino (1987) 33 CCC (3d) 334, to which counsel for the appellant very properly drew our attention. The points raised by the extraditee in that case were raised under the Canadian Charter of Rights and Freedoms, of which there is no Australian equivalent. The extraditee argued that his extradition, five years after the alleged offence, offended two provisions of the Charter, ss.7 and 11(b). The latter provision confers the right "to be tried within a reasonable time". The majority held that it applied only to trials within Canada, so it had no application to an extradition case. The more substantial point was raised under s.7 which provides:
"7. Everyone has the right to life, liberty and security of the person

and the right not to be deprived, thereof except in accordance
with the principles of fundamental justice."

21. Despite the width of s.7, the Supreme Court held that it did not entitle an extradition judge to stay an extradition application because of delay by the country seeking extradition. La Forest J., with whom Dickson C.J., Beetz, McIntyre and Le Dain JJ. concurred, referred to the power of a trial judge to stay a criminal trial for abuse of process. He went on, at 346-347:

"It should be observed, however, that ... the power to grant a stay
for abuse of process is vested in the trial judge, not in a judge at
a preliminary hearing. Charter considerations apart, a judge at
extradition hearing is in a position more closely related to that of
a magistrate at a preliminary hearing. Such matters are to be dealt
with at the trial in the foreign country like other defences. That
approach has been followed in Canada from the development of
extradition procedures. ...
In this court, counsel intertwined his contention that there was an
abuse of process with an argument based on s.7 of the Charter. As with
the simple abuse of process argument, this argument, too, assumes that
an extradition judge has jurisdiction to deal with the issue and grant
the appropriate remedies. It also assumes that the delay can be
attributed to officials of the Canadian government, which I would have
thought was a prerequisite to the application of the Charter by virtue
of s.32: ... However, quite apart from these assumptions, which I shall
address later, I am unable to accept this argument.".

22. Reference was made in argument to the decision of this Court in Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472. That was an extradition case in which a complaint was made of abuse of process on the ground that there had been a prior application which failed for lack of proof of some material matters. It was argued that, this application having failed, the applicant for extradition ought not be allowed to re-litigate the same matter in a second application. The members of the Full Court unanimously held that there was no abuse of process. But there was a divergence of opinion as to the nature and extent of an extradition court's power to prevent abuse of process: see per Sheppard J. at 483, per Burchett J. at 486-487 and per Gummow J. at 526-527. The discussion in this case is of general interest. But it is not pertinent to the present issue. This is not so much because of changes in the relevant statute - Wiest was decided under the 1966 Act - as the fact that their Honours were using the term "abuse of process" in its strict sense of process not intended to be used for its true purpose. That is not this case. The entitlement of a court to protect itself from that type of abuse is an entirely different matter from the entitlement of a magistrate to refuse a genuine application because of delay in the foreign country where the crime is said to have been committed.

23. Counsel for the appellant submitted that, if the magistrate had no power to refuse extradition because of such delay, there would be no recourse available to an extraditee affected by delay. It follows from what we have said that we do not think that a magistrate has power to stay extradition proceedings because of this type of delay. But we do not doubt that the Attorney-General may take delay, and any consequential hardship, into account in determining whether to surrender a person to a requesting state. Section 22(3) provides that a person is only to be surrendered if certain conditions are satisfied. Those conditions include, in paragraph (f), "the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence". Contrary to the suggestion of counsel for the appellant, that discretion is not limited to matters arising out of the preceding paragraphs of the subsection. As might be expected, having regard to the variation in the circumstances of extradition matters and the political and diplomatic sensitivities of the subject, the Attorney-General's discretion is at large. The Attorney-General may decline extradition for any reason which he or she thinks appropriate. Those reasons include that the request for extradition has been unduly delayed.

24. There is no substance in any of the points advanced on behalf of the appellant. The appeal must be dismissed with costs.