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Federal Court of Australia |
Last Updated: 21 January 1999
Judiciary Act 1903 (Cth), ss 39B(1), (1A)
Extradition Act 1988 (Cth), ss 6, 14, 16, 19, 21, 22, 46
Extradition (Republic of South Africa) Regulations
Ujiie v Republic of Singapore (1996) 66 FCR 323 referred to
Winkler v Director of Public Prosecutions (1990) 25 FCR 79 referred to
Republic of South Africa v Dutton (1997) 77 FCR 128 referred to
GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 referred to
Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153 referred to
Foster v Attorney-General (1998) 158 ALR 394 referred to
Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472 applied
Papazoglou v Republic of the Philippines (1997) 74 FCR 108; 144 ALR 42 applied
Federal Republic of Germany v Parker (Ryan, Einfeld and Foster JJ, unreported, 2 July 1998) applied
In re Rees [1986] AC 937 applied
Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 applied
McDade v Attorney-General of the Commonwealth (R D Nicholson J, unreported, 1 May 1998) referred to
Ebatarinja v Deland [1998] HCA 62; (1998) 157 ALR 385 referred to
Trimbole v Dugan [1984] FCA 323; (1984) 3 FCR 324 referred to
Bramwell v Repatriation Commission (1998) 158 ALR 623 referred to
Transport Workers' Union of Australia v Lee (Black CJ, Ryan and Goldberg JJ, unreported, 30 June 1998 referred to
Hempel v Attorney-General (1987) 77 ALR 641 referred to
Hempel v The Attorney-General (Spender, Pincus and Hartigan JJ, unreported, 27 November 1987) referred to
Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 applied
Zoeller v Webb (1989) 17 ALD 633 applied
Slater v Chief Justice Miles (Finn J, unreported, 16 October 1998) referred to
EDWARD ISAAC DUTTON v THE REPUBLIC OF SOUTH AFRICA & ORS
NG 263 of 1998
Burchett J
Sydney
7 January 1999 IN THE FEDERAL COURT OF AUSTRALIA BETWEEN: Applicant AND: First Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Second Respondent
ALLAN MOORE
Third Respondent JUDGE:
NEW SOUTH WALES DISTRICT REGISTRY NG 263 OF 1998
EDWARD ISAAC DUTTON
THE REPUBLIC OF SOUTH AFRICA
BURCHETT J DATE OF ORDER: 7 JANUARY 1999 WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 263 of 1998 |
|
BETWEEN: | EDWARD ISAAC DUTTON
Applicant |
|
AND: | THE REPUBLIC OF SOUTH AFRICA
First Respondent
ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent
ALLAN MOORE Third Respondent |
JUDGE:
BURCHETT J DATE: 7 JANUARY 1999 PLACE: SYDNEY
1 The applicant, who is the subject of a proceeding before a magistrate under s 19 of the Extradition Act 1988 (Cth) for his extradition to South Africa in respect of certain alleged extradition offences, has applied to this court for a permanent stay of that proceeding, claiming the benefit of an issue estoppel or res judicata, or that the proceeding involves an abuse of process.
2 An examination of the issues raised by the applicant's arguments does not require me to go into the facts in detail. It will be sufficient to give a brief outline. He was arrested in South Africa on 28 December 1989, and put upon trial for fraud in the Supreme Court of South Africa on 27 January 1992. However, that trial was never completed because the applicant left South Africa while it was still proceeding, about two years later. On 24 November 1995, he was arrested in Australia upon an extradition warrant pursuant to a request for his extradition made by the Republic of South Africa on 3 October 1995. In the subsequent extradition proceedings under s 19 of the Extradition Act, a magistrate rejected (because of non-compliance with s 65(6) of the Evidence Act 1995) certain evidence tendered by the Republic to satisfy the "sufficient evidence" test, which was required to be satisfied by virtue of the Extradition (Republic of South Africa) Regulations as they then stood. (For the meaning and effect of this test, see Ujiie v Republic of Singapore (1996) 66 FCR 323.) As a result, the magistrate on 29 November 1996 determined, under s 19(10) of the Extradition Act, that the applicant was not eligible for surrender to South Africa in relation to the alleged extradition offences, and ordered that the applicant be released.
3 What I have recounted so far is uncontroversial, although the correctness of the magistrate's decision has not been accepted by the Republic. However, before proceeding with the story I should mention one matter which is somewhat controversial. The Attorney-General's notice under s 16(1), authorizing the magistrate to conduct the proceedings under s 19 to which I have referred, did not issue until 18 December 1995. Before then, the original request of the Republic of South Africa of 3 October 1995 for the extradition of the applicant had been supplemented by a further communication made on 27 November 1995. The applicant says the further communication amounted to a second extradition request within the meaning of s 16. Although I do not think it matters very much, I consider the preferable view to be that there was one request, which may have been constituted by two documents: cf Winkler v Director of Public Prosecutions (1990) 25 FCR 79. In any case, there was only one proceeding brought into existence in Australia for the extradition of the applicant, up to the time the order was made to release him; for such a proceeding required an Attorney-General's notice under s 16, and there was till then only one notice, whether it was based on either or both of the communications from South Africa.
4 Being dissatisfied with the magistrate's rejection of its evidence, the Republic sought a review of her order by the court under s 21(1) of the Act. The matter came before Hill J, who considered that a determination of certain preliminary questions would be useful, and therefore embarked on a limited hearing. His decision is reported: Republic of South Africa v Dutton (1997) 77 FCR 128. That decision was handed down on 1 August 1997. Although the answers given by Hill J to the preliminary questions debated before him did not dispose of the application for review of the magistrate's orders, they seem to have been regarded as unfavourable by the applicant, for an application for an extension of the time to apply for leave to appeal was filed on his behalf on 5 September 1997. Time was extended by order of Tamberlin J on 9 October 1997, but the question whether the case was appropriate for a grant of leave to appeal was left outstanding, presumably on the basis that it would come before a full court.
5 Before the matter could get to a full court, events occurred to cut short any question of appeal. These events had their origin in a significant amendment of the Extradition (Republic of South Africa) Regulations, which came into effect on 21 May 1997. By that amendment, the burden on the Republic to satisfy the "sufficient evidence" test was eliminated. On 9 January 1998, the South African High Commission in Canberra made a further request ("the second request") for the extradition of the applicant, and on 21 January 1998 a notice which purported to comply with s 16 of the Act issued in relation to the second request. No argument was raised before me to suggest that this second notice under s 16 was invalidly executed, nor was evidence led to found any such argument; the applicant's contentions were based on questions of estoppel, res judicata and abuse of process, as I have already mentioned. However, I should draw attention to the fact that the notice was signed, not by the Attorney-General himself, but by the Minister for Justice, who expressed herself as "being authorised to act for and on behalf of the Attorney-General of the Commonwealth of Australia, under subsection 16(1) of the Extradition Act 1988", and whose signature was followed by the words "Minister for Justice acting for and on behalf of the Attorney-General". Although s 16 limits the authority to give such a notice to a case "[w]here the Attorney-General receives an extradition request", and confers that authority upon "the Attorney-General ... in his or her discretion", limiting it further by reference to "the opinion" of the Attorney-General in respect of the matters set out in subsection (2), a notice in this form could well be valid in the circumstances discussed in GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 338-343 and Zoeller v Attorney-General for the Commonwealth (1987) 16 FCR 153 at 163-165. But it has been held by Spender J that, in other circumstances, another Minister may not be validly authorized to act on behalf of the Attorney-General in respect of decisions under the Extradition Act: Foster v Attorney-General (1998) 158 ALR 394. His Honour's judgment, which concerned a determination under s 22(2) and the issue of a warrant under s 23 of the Act, was published after I had reserved my decision in this matter.
6 Following the issue of the notice of 21 January 1998, the applicant was again arrested on 17 February 1998, and a notice of motion was filed on 25 February 1998 in the application for review which had come before Hill J, seeking leave to discontinue that application. Plainly, if the Republic wished to pursue proceedings before a magistrate under s 19 in respect of the second s 16 notice, this was necessary, since the continued prosecution of both proceedings at the same time would have been oppressive. Before that motion came on for hearing by Hill J, the applicant, Mr Dutton, had made an application of his own to Madgwick J, on 4 March 1998, in which he sought an injunction to restrain the launching of a fresh extradition proceeding. This application by Mr Dutton led to the making by Madgwick J on 4 March 1998 of a consent order, as follows:
"By consent and without admissions:
NOTE:
1. The First and Third Respondents shall submit to Magistrate Moore as soon as practicable that special circumstances exist justifying the Applicant being remanded on bail pursuant to section 15(6) of the Extradition Act 1988 upon such conditions as to bail as the Magistrate may determine but including the following:
a. Daily reporting to the Officer-in-Charge Manly Police Station.
b. The provision of security in a substantial sum.
c. 2 sureties to undertake to forfeit a substantial sum of money in the event of breach of bail.
d. Applicant to reside at 3 Pavilion Street, Queenscliffe.
e. Applicant to notify Office in Charge Australian Federal Police of any change of address no later than 24 hours before any such change.
f. Applicant not to approach any overseas/international points of departure from Australia.
g. Applicant to surrender all passports to Officer in Charge, Australian Federal Police, Sydney.
h. Applicant not to apply for any international travel documents.
2. The intention of the parties is that in the event that bail is granted these proceedings shall be dismissed with no order as to costs.
3. In the event that bail is either, not granted, or the Magistrate does not make a determination of the Applicant's pending bail application then the proceedings are to [be] mentioned before this Court as soon as possible.
4. Upon such further mention, if any, the First and Third Respondents will agree as follows:
(i) Not to challenge the jurisdiction of the Court to make an interim order with respect to the release of the Applicant from custody forthwith upon the conditions referred to in paragraph 1 hereof.
(ii) To have these proceedings stood over for such period as may be necessary to enable the First Respondent's application for the extradition of the Applicant to South Africa, made in January 1998, to be heard and determined by a Magistrate pursuant to section 19 of the Extradition Act 1988.
5. Should paragraph 3 hereof become applicable then:
(i) The Applicant undertakes to this Court not to oppose the hearing and determination by a Magistrate as soon as practicable of the said extradition request pursuant to section 19 of the Act.
(ii) The Applicant consents to these proceedings being stood over for such period as may be necessary to enable the said extradition request to be heard and determined by a Magistrate.
(iii) Upon the determination of the said extradition request the Applicant shall as soon as practicable seek (by consent) an order that these proceedings be dismissed with no order as to costs.
ORDER:
6. Subject to paragraph 2 hereof, liberty to any party to apply on 7 days notice generally but on 24 hours notice with respect to any matter concerning compliance with the conditions set out in paragraph 4(i) hereof."
In reading this order made by Madgwick J, the reader should understand that the first respondent was the Republic of South Africa and the third respondent was the Attorney-General of the Commonwealth of Australia. "Magistrate Moore" was, of course, the magistrate before whom the second s 16 notice had come, and he is now the third respondent (who has, in accordance with the usual practice, simply submitted to the order of the court) in the proceeding before me.
7 The matter then came back before Hill J on 6 March 1998, on the motion for leave to discontinue filed by the Republic of South Africa, when he dismissed its application for review, ordering that the order of the magistrate of 29 November 1996 "pursuant to s 19(10)(a) of the Extradition Act 1988 as amended that the First Respondent be released is confirmed." He ordered the Republic to pay Mr Dutton's costs of the application for review and of his application for leave to appeal, in respect of which his Honour granted Mr Dutton leave to withdraw.
8 To complete the outline of events, it is only necessary to add that on 5 March 1998 bail was duly granted to the applicant as contemplated by the consent order made by Madgwick J. The proceeding under s 19 in respect of the second notice has been adjourned pending the determination of the application made to me.
9 The applicant's arguments based on issue estoppel and res judicata may be disposed of quite shortly. Courts have held repeatedly that the failure of one application for extradition raises no bar to the making of another. Wide though the principle of double jeopardy is (see Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 277; R v Leece (1996) 65 FCR 544 at 562-3, 569), it does not deny that proposition. In Wiest v Director of Public Prosecutions [1988] FCA 450; (1988) 23 FCR 472 at 523-524, Gummow J (with whose judgment Sheppard J expressed general agreement, and I relevantly agreed) said:
"The proceedings before a magistrate exercising functions described in s 17(6) of the Extradition Act are to determine whether upon the materials then before him the fugitive should be released or committed to prison to await the Attorney-General's warrant for his surrender. The magistrate has to be satisfied, after taking into account any evidence properly adduced by the person in question, that that person is liable to be surrendered to the foreign State which made the requisition for the surrender. In the present case, Mr Armati ordered the release of the appellant because he was not liable to be surrendered unless, as was not shown to be the case, the Federal Republic had given an undertaking under the speciality provision of s 13(2).
However, in terms of s 12, the appellant remained a fugitive liable to be apprehended and surrendered subject to compliance with the provisions of the Extradition Act and any regulations thereunder which were applicable to him. The effect of what Mr Armati decided was that at that time there had not been such compliance; but to decide that did not foreclose the possibility of subsequent compliance. The point was put as follows by Brandeis J speaking for the United States Supreme Court (and in circumstances where the release of the fugitive had been effected by an order for habeas corpus) in Collins v Loisel [1923] USSC 147; 262 US 426 at 430 (1923):
`[A] judgment in habeas corpus proceedings discharging a prisoner held for preliminary examination may operate as res judicata. But the judgment is res judicata only that he was at the time illegally in custody, and of the issue of law and fact necessarily involved in that result.' [Emphasis supplied.]"
In Papazoglou v Republic of the Philippines (1997) 74 FCR 108; 144 ALR 42 (in the former report erroneously styled "Papzoglou v Republic of the Philippines"), the judgment of the court (Wilcox, Tamberlin and Sackville JJ) states (at 125; 56):
"The conventional view is that a determination that a person is not eligible for surrender relates only to the circumstances prevailing at the time the determination is made and does not preclude a subsequent determination that the person is so eligible."
The court reiterated the point (at 131; 62):
"[A]s Wiest v Director of Public Prosecutions decides, a determination that a person is not eligible for surrender does not finally decide that issue and a fresh application can be brought."
Finally, in Federal Republic of Germany v Parker (Ryan, Einfeld and Foster JJ, unreported, 2 July 1998), the joint judgment of the court states (at 30):
"The argument put to the primary judge and to this Court was that because Australia had not considered the information furnished in support of the 1991 request sufficient, Article 11 of the Treaty did not apply to the current request. This submission is fundamentally misconceived. An extradition proceeding is not a criminal trial, and the dismissal of the proceeding is not equivalent to an acquittal. Thus concepts such as autrefois acquit and res judicata have no application.
Moreover, no question of abuse of process arises. As expressly pointed out in Papazoglou at [ALR] 62-3 and in Wiest v DPP [1988] FCA 450; [1988] 23 FCR 472 at 486-7 and 527-8, a determination that a person is not eligible for surrender does not finally decide that issue and a fresh application can be brought."
10 None of these statements, each emanating from a full court, suggests the distinction which counsel for the applicant urged upon me - that the order made by Hill J confirming the magistrate's order of release was an order made in the exercise of judicial power. Counsel contended that the order of the court did make the matter res judicata and did raise an issue estoppel, although he accepted the decision of the magistrate under s 19 would not in itself have done so. He said this was because the magistrate was acting as persona designata, in an administrative and not a judicial capacity. But the authorities do not proceed upon any such distinction; rather they proceed upon the basis that a decision denying eligibility to be extradited denies it only as at the time of the decision, and not finally or for all time. Indeed, Gummow J, in the passage I have quoted from his judgment in Wiest, relies upon a decision of the Supreme Court of the United States in respect of what was certainly a judicial order, a judgment in habeas corpus proceedings. Sheppard J, shortly after the decision in Wiest, applied it, as of course, to a case where a previous extradition application had failed upon review by this Court: Zoeller v Webb (1989) 17 ALD 633. (I mention that the headnote to this case is wrong when it suggests an earlier warrant had been held "valid"; that warrant had been held invalid, as appears from the judgment at 634.) The same position applies in the United Kingdom. In In re Rees [1986] AC 937 at 961-962, Lord Mackay of Clashfern (with whose speech Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed) said:
"The decision of the police magistrate setting a person at liberty in terms of article XII [the provision of the relevant treaty which required him to be released upon a failure to produce sufficient evidence within a specified time] is not a decision that he can never thereafter be extradited in respect of the matter which has been the subject of the requisition."
These authorities proceed on the basis of the nature of the decision made, not of the status of the tribunal that made it.
11 In re Rees also provides an answer to the applicant's final argument, by which he asserts that the renewed attempt to secure his extradition, involving a second s 19 hearing, is an abuse of process. For In re Rees dealt with a quite similar situation. There, the German government had sought an extradition order in support of which it had produced (as appears from the speech of Lord Mackay at 961) evidence "in respect of which substantial argument could be raised as to whether or not it was in proper form and properly authenticated as required by the statutory provisions". Accordingly, fresh evidence had been obtained, and "counsel for the German Government had advised his clients, and the advice had been accepted, that since evidence which in his view was in proper form and had been properly authenticated had been received ... it was unnecessary and undesirable to continue with the proceedings in which only the earlier version of the evidence had been produced". Accordingly, the appellant, against whom extradition had been sought, was discharged, and fresh proceedings for his extradition were begun upon a new order of the Secretary of State (equivalent to our notice under s 16) directed to the magistrate. It will be seen that there are some differences between the position in In re Rees and the position in the present case. One difference is that the second order of the Secretary of State, in In re Rees, was not founded on any second requisition, but on a reassertion by the German government of its original requisition, upon which the first order of the Secretary of State had been founded. That does not seem to me to be material. Another difference is that In re Rees was not concerned with a change in the requirements of the relevant treaty, but with a change in the material provided by the German government to achieve compliance with those requirements. It is difficult to see why this distinction should assist the applicant's argument. In both cases, the legal effectiveness of what had been done to procure an order under the first notice of the Attorney-General (in Australia), or under the first order of the Secretary of State (in the United Kingdom), was not ultimately put to the test, and in both cases this was because the authorities considered that testing the point would involve unnecessary delay and expense, having regard to the availability of an alternative. They preferred to cut the Gordian knot. Lord Mackay thought their doing so was not open to objection, and in particular it was not open to the objection of abuse of process. His Lordship put the point in this way (at 963-964):
"As I have already said, the second order was granted because the German Government had been advised that difficult questions arose with regard to the form and authentication of the evidence which had been produced prior to 16 June 1984, but that these difficulties were obviated if the evidence produced on 6 July could be put before the court for its consideration. From the documents which were produced to us and which were before the Divisional Court, it is apparent that the difficult questions could have occupied a great deal of time in argument which would be quite unnecessary if the new evidence were being considered. In my opinion it was a perfectly proper step for the German Government to take in these circumstances to abandon the proceedings in which the new evidence was not available in order to replace them by proceedings in which the new evidence was available and these questions could be obviated ... .
In my opinion, the action taken by the German Government and by the Secretary of State in granting the second order was likely to lead to an earlier resolution of the real questions between the parties than would have been possible if the earlier proceedings had been continued. I see no ground upon which the action of the Secretary of State in granting the second order can be successfully challenged. So far as abuse of process is concerned, the alleged abuse of process rests on the same ground as the allegation that the Secretary of State's second order was improperly granted and, in my opinion, is equally without merit."
The relevance of the considerations mentioned in this passage to the present case is obvious. Here also, further pursuit of the questions which had led to the review application made before Hill J would have been bound to encounter difficulties, to incur expense, and to involve delays. Mr Dutton was seeking leave to appeal against the preliminary judgment given by Hill J; a final hearing by Hill J was yet to take place; a further appellate proceeding might well have followed whatever decision Hill J might ultimately have given; and applications for special leave to appeal to the High Court could not be ruled out. The course adopted was an appropriate one, and far from the kind of conduct discussed in such cases as Wiest.
12 The applicant sought to bolster his case on the issue of abuse of process by reference to evidence of communications between the South African government and the Australian government, which preceded the hearing under s 19 pursuant to the earlier Attorney-General's notice. It appears from this evidence that there were some difficulties in putting together the evidence, a number of witnesses having left South Africa for overseas following the aborted trial in that country. A suggestion by one of the prosecution lawyers in South Africa that the entire transcript of the aborted trial be forwarded to Australia was viewed with disfavour by officers of the Attorney-General's Department in Canberra because of the sheer bulk of this transcript - some thirty thousand pages. The use of excerpts from the transcript was then discussed. In a record of these discussions made by an officer of the Department, the expression is used, with respect to the tender of selected excerpts from the transcript, "it may ultimately be worth a try". However, to conclude from this that the case actually presented for the applicant's extradition, at the original hearing under s 19, was a less than responsible attempt to pursue an unjustified or inappropriate application would seem to me to be quite wrong. There is simply no evidence that the problems raised in the communications between the governments were not honestly and carefully considered and dealt with. The mere fact that the magistrate (in the proceeding the review of which was never completed at a contested hearing) considered the evidence not to have been "properly authenticated pursuant to s 65(6) of the Evidence Act 1995" does not provide any sufficient basis for the severely adverse conclusion a finding of abuse of process would require.
13 In my opinion, the applicant's case falls at the first hurdle; the circumstances do not enable me to find anything in the nature of an abuse of process.
14 Even if there were merit in the applicant's complaint concerning abuse of process, he would be confronted by a further hurdle. His application is not for judicial review of the decision of the Attorney-General to issue the second notice (an attempted challenge on that issue was abandoned when the matter that came before Madgwick J was settled), but for a stay of the proceeding before the magistrate under s 19 of the Act. The Act confers on the court no express power so to control this proceeding. Once the Attorney-General's notice has been given and the terms of s 19(1) have been fulfilled, the Act requires that "the magistrate shall conduct proceedings to determine whether the person [the subject of the application for extradition] is eligible for surrender ... ." Nothing in the Act suggests that the magistrate is entitled to go outside that question to the anterior question whether the Attorney-General's notice should have been issued, or whether the foreign state's requisition should have been rejected as involving an abuse. A decision of the High Court in Director of Public Prosecutions of the Commonwealth v Kainhofer (1995) 185 CLR 528 is authority for the proposition that the Act establishes a layered or stratified system of decision-making, pursuant to which no decision-maker at a particular level is to be concerned with any issue determined or to be determined at another level, unless that issue is expressly required by the Act to be decided at that particular level as well. Although some questions do recur in the course of an extradition proceeding, the general scheme of the Act is that the issues in such a proceeding will be determined progressively as the matter passes from the first layer of decision to the last - the decision of the Attorney-General to issue a notice in respect of an extradition request under s 16 (which may or may not be preceded by the issue of a warrant under s 12); the determination by a magistrate of eligibility for surrender under s 19 (which may be cut short by a consent to surrender under s 18, or reviewed by a court under s 21); and the determination of the Attorney-General under s 22 whether or not a person eligible for surrender is to be surrendered in relation to any offence. In Kainhofer, Brennan CJ, Dawson and McHugh JJ, in their joint judgment, said (at 539):
"The authority of a magistrate to conduct proceedings under s 19 depends on the matters specified in sub-s (1) including the making of an order of remand under s 15 and the giving of a s 16 notice. Lacking any power to review those decisions, a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."
15 The factual question in Kainhofer was whether the person proceeded against was actually accused of the alleged offences, a matter going to whether she was an extraditable person within the meaning of s 6. The High Court held that this was not a matter for the magistrate hearing the proceeding under s 19, but for a magistrate asked to issue a warrant under s 12 or for the Attorney-General under s 16. However, the separation of the areas of responsibility in relation to an extradition proceeding which the High Court affirmed has since been applied in respect of an allegation of an abuse of process: Papazoglou v Republic of the Philippines. In that case, the allegation of abuse arose, not from a repetitive extradition proceeding, but from the fact that the alleged fugitive had already been punished for a number of a group of offences for others of which his extradition was subsequently sought, with the consequence, it was alleged, that he would be made liable, if extradited, to an effective double punishment. The Full Court, in its joint judgment, after referring to Kainhofer, held (at 131; 62):
"[Section] 19(2) does not empower the magistrate to refuse to make a decision that a person is or is not eligible for surrender, on the ground that the proceedings constitute an abuse of process. Section 19 contemplates that the magistrate will proceed to make a determination as to whether the person is eligible for surrender. It does not contemplate that the proceedings will be terminated in some other way."
See also Forrest v Kelly (1992) 34 FCR 74 at 79, where the same view was taken, even before the decision of the High Court in Kainhofer.
16 The judgment in Papazoglou turned to the question whether a Supreme Court or the Federal Court would have power to terminate proceedings under s 19 as an abuse of process, the magistrate not having power to do so. As to this, their Honours said (at 138; 68-69):
"We have already referred to the mandatory language employed in s 19. Just as that language is incompatible with an implied power in the magistrate to determine the proceedings under s 19 as an abuse of process, in our opinion it is incompatible with the Supreme Court, in the exercise of its inherent jurisdiction, determining that the proceedings are an abuse of process."
The Court goes on to refer to the power of review under s 21, and to state (at 139; 69):
"But the powers granted to the Supreme Court (or the Federal Court if the application is made to it) are limited to confirming the magistrate's order or quashing it and (in the latter case) directing the magistrate to make an order under s 19(9) or (10) as may be appropriate: s 21(2). The Court is limited, when conducting its review, to the material that was before the magistrate. These narrowly confined provisions lend no support to the contention that it was intended that the Supreme Court's jurisdiction under the Extradition Act to review a magistrate's determination should co-exist with its inherent jurisdiction to terminate the proceedings before the magistrate as an abuse of process.
The original jurisdiction of the Federal Court
The written submissions addressed the question of whether the Federal Court, in the exercise of its original jurisdiction, has power to terminate proceedings under s 19 of the Extradition Act, on the ground that they constitute an abuse of process. There is no need to resolve this question, since the appellant at no stage has sought to invoke the original jurisdiction of the Federal Court. It is enough for us to say that, for similar reasons to those we have already given, we doubt that this Court has jurisdiction to grant declaratory relief of the kind sought by the appellant in the present proceedings."
In a final comment (at 141; 71), the Court underlined that its "doubt" as to this Court's jurisdiction really amounted to a denial of that jurisdiction. For their Honours said:
"The effect of what we have held is that, in a case where an application for the surrender of a person institutes what otherwise might be an abuse of process, or where the extradition of the person would be unjust, oppressive or too severe a punishment, only the Attorney-General can prevent that person's surrender for extradition."
Subsequent decisions have accepted that this is the effect of Papazoglou. In McDade v Attorney-General of the Commonwealth (R D Nicholson J, unreported, 1 May 1998) R D Nicholson J said (at 7):
"Given the establishment of the pre-conditions, the magistrate must proceed to conduct the proceedings. This Court could have no power to declare such a proceeding, not yet held, to be invalid or to permanently stay it when there is a mandatory statutory duty for the proceeding to be conducted subject to the pre-conditions being satisfied."
His Honour also said (at 9):
Similarly, in Federal Republic of Germany v Parker, the Full Court held that an attack on the requesting country's compliance with treaty obligations, as regards the documents it was required to supply, was simply outside the scope of the matters committed to the consideration of the magistrate by s 19, or which could be reviewed by a court under s 21.
"It was submitted for the applicants the fact the magistrate lacks power to stay on the authority of Papazoglou does not mean this Court lacks such power. That submission cannot be accepted because the reasoning in Papazoglou was founded on the effect of the statutory provisions, which are equally applicable to the Court. Those statutory provisions displace any argument the Court has inherent jurisdiction to act otherwise."
17 The emphasis which these cases place on the statutory charter of a magistrate hearing a proceeding under s 19 is also supported by a recent decision of the High Court in a related area. Ebatarinja v Deland [1998] HCA 62; (1998) 157 ALR 385 was concerned with a committal hearing before a magistrate in the Northern Territory in relation to a deaf mute who could not understand the proceedings. Gaudron, McHugh, Gummow, Hayne and Callinan JJ, in their joint judgment, said (at 388):
"With great respect to Mildren J, the real question in the case is not whether it is unfair or unjust or a denial of natural justice to the appellant to proceed with the committal, important though those questions may be. The fundamental question is whether, having regard to the provisions of the Justices Act and the fact that the appellant cannot understand the proceedings, the magistrate has jurisdiction to continue the proceedings, or alternatively, jurisdiction to commit the appellant for trial or to discharge him after hearing all the evidence."Their Honours went on to refer to a provision of the Justices Act requiring the proceedings to take place "in the presence or hearing of the defendant", and a requirement that he must be given the right to answer the charge. They held (at 392) that "the magistrate ... would have no authority to commit the appellant for trial and has no power to take evidence which is not taken `in the presence or hearing of the defendant'. That being so, she has no authority to continue with the proceedings." A similar approach to extradition proceedings before a magistrate must focus on the magistrate's statutory task under s 19, and this court's function of review under s 21.
18 A conclusion that an allegation of abuse of process cannot be relied upon in an attack on the conduct of proceedings under s 19 does not, of course, mean that, in a proper case, there is no remedy. In Kainhofer, Brennan CJ, Dawson and McHugh JJ said (at 538-539):
"The question whether a person is accused of having committed an offence in relation to which a warrant for the person's arrest has been issued by an extradition country is addressed by a magistrate under s 12(1) and by the Attorney-General under s 16 in considering whether the person is an extraditable person. The state of mind which is formed on that issue by those officers is not reviewable by a s 19 magistrate. Of course, prohibition or mandamus may go to an officer of the Commonwealth who exercises power under the Act but the amenability of decisions under ss 12(1) and 16 to judicial review does not expose those decisions to review by a magistrate who conducts administrative proceedings under s 19."In a footnote, their Honours referred to s 75(v) of the Constitution and s 39B of the Judiciary Act 1903. They noted that the Administrative Decisions (Judicial Review) Act 1977 does not apply to decisions under the Extradition Act 1988, being excluded by the operation of s 3 and Schedule 1 par (r) of the Administrative Decisions (Judicial Review) Act. Toohey J also referred (at 541-542) to s 39B of the Judiciary Act, although he said that a State magistrate "exercising jurisdiction under the Act does not in any event answer the description of an officer of the Commonwealth", citing as authority for that proposition the decision of Woodward J in Trimbole v Dugan [1984] FCA 323; (1984) 3 FCR 324 (the relevant passage is at 327-328). Woodward J effectively equated the position of a State magistrate the subject of an individual or collective arrangement gazetted under the equivalent of s 46 of the Act "for the performance ... of the functions of a magistrate under this Act" with the position of a State court exercising federal jurisdiction conferred on it, as a court, by some Act. It is not clear that the members of the High Court other than Toohey J shared this view. In the passage which I have cited from the judgment of Brennan CJ, Dawson and McHugh JJ, reference is made to the decision of a magistrate under s 12(1) as a decision by an officer which is not reviewable by a s 19 magistrate. Their Honours then point out, in the footnote I have already mentioned, that the Administrative Decisions (Judicial Review) Act does not apply to decisions under the Extradition Act. Yet decisions under s 12 are included in their Honours' reference to "the amenability of decisions under ss 12(1) and 16 to judicial review". This seems, in the context, to suggest that a decision under s 12 by a State magistrate, acting as persona designata pursuant to an arrangement made under s 46, would be a decision by an officer of the Commonwealth, so as to be reviewable under s 39B of the Judiciary Act. Gummow J does not advert to the problem.
19 In practice, the doubt whether the decision of a magistrate under s 12 can be reviewed as that of "an officer of the Commonwealth" is unlikely to matter. The Attorney-General's decision under s 16, or later under s 22, is certainly so amenable to review. And if s 39B(1) of the Judiciary Act is not effective to confer jurisdiction in respect of the decision of the magistrate, since 17 April 1997 (when s 39B(1A) was enacted), this court has had original "jurisdiction in any matter ... arising under any laws made by the Parliament": cf Bramwell v Repatriation Commission (1998) 158 ALR 623 at 636. A full court has held in Transport Workers' Union of Australia v Lee (Black CJ, Ryan and Goldberg JJ, unreported, 30 June 1998) at 9 that s 39B(1A) "operates according to its terms as a general conferral of jurisdiction ... in respect of matters arising under any laws made by the Parliament". Extradition decisions are to be contrasted with the decisions that were in question in Slater v Chief Justice Miles (Finn J, unreported, 16 October 1998), which without doubt involved officers, not of the Commonwealth, but of the Australian Capital Territory, and were made under a law, not of the Commonwealth Parliament, but of the Territory Legislative Assembly.
20 While the court has clear jurisdiction to review a decision of the Attorney-General under s 16 or s 22 (Hempel v Attorney-General (1987) 77 ALR 641, affirmed Hempel v The Attorney-General (Spender, Pincus and Hartigan JJ, unreported, 27 November 1987), where jurisdiction was accepted under the then provisions of the Administrative Decisions (Judicial Review) Act 1977; Papazoglou at 114-155; 46, 130; 61, 140; 71; Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 at 400-401, 412-413; Kainhofer, ubi cit supra), the authorities repeatedly draw attention to the discretionary nature of the jurisdiction, and to the undesirability of any unnecessary fragmentation of the extradition process. In Harris at 413, the joint judgment of Beaumont, Einfeld and Foster JJ, referring to an earlier judgment of Davies J, states "there are sound reasons of policy why the Court should be reluctant to intervene at an intermediate stage of the extradition process, in the absence of an exceptional situation".
21 As I have made clear, I did not understand counsel, in the argument presented to me, to have attempted to resuscitate the challenge to the Attorney-General's decision under s 16 which was abandoned before Madgwick J. However, if that decision, as well as the pursuit of the s 19 proceeding, should be regarded as attacked by the submission that the continued pursuit of the application for extradition is an abuse of process, I would reject this submission for reasons which I have already given. I do not consider that any abuse of process has been shown.
22 For these reasons, the application should be dismissed with costs.
|
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable
Justice Burchett. |
Associate:
Dated: 7 January 1999
|
Counsel for the Applicant: | Mr G Nicholson QC with Mr N Aughtersen |
| Solicitor for the Applicant: | Wood Marshall Williams |
| Counsel for the Respondent: | Mr P W Neil SC with Ms P McDonald |
| Solicitor for the Respondent: | Director of Public Prosecutions |
| Date of Hearing: | 9 June 1998 |
| Date of Judgment: | 7 January 1999 |
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