Mansell v Acting Magistrate Luxton [2010] FMCA 409 (26 May 2010)

Last Updated: 3 August 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANSELL v ACTING MAGISTRATE LUXTON

[2010] FMCA 409

ADMINISTRATIVE LAW – Administrative decision judicial review – application to stay further proceedings pursuant to an extradition warrant – consideration as to whether the decision of the Acting Magistrate was administrative or judicial – consideration of consequences of not granting a stay – in the circumstances stay granted.

Administrative Decisions (Judicial Review) Act 1977, ss.5(1)(f), 9A, 15A Criminal Procedure Act 2004 (WA) Service and Execution of Process Act 1992, s.83(2), (3), (5), (10) The Criminal Code (Q.), s.679

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 T.V.W. Ltd. v. Robinson (1964) WAR 33 Feather v. Rogers (1909) CR(NSW) 192

Applicant:

CAMERON JAMES MANSELL

Respondent:

ACTING MAGISTRATE SCOTT LUXTON

File Number:

BRG 519 of 2010

Judgment of:

Coker FM

Hearing date:

26 May 2010

Date of Last Submission:

26 May 2010

Delivered at:

Townsville

Delivered on:

26 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr R.W. Griffith

Solicitors for the Applicant:

Stevenson & McNamara

Counsel for the Respondent:

Mr Elliott

Solicitors for the Respondent:

Crown Law

ORDERS

THE COURT ORDERS UNTIL FURTHER ORDER:

(1) That the operation of the decision of Acting Magistrate Luxton made on the evening of 25 May 2010 at the Townsville Magistrates Court be suspended.
(2) That any further proceedings in the Magistrates Court Queensland based upon this warrant and the decision of Acting Magistrate Luxton be stayed.

IT IS DIRECTED:

(3) That service of the Application filed on 26 May 2010 be effected forthwith upon the proper contradictor to the Application currently before the Court.
(4) That pursuant to section 15 of the Administrative Decision Judicial Review Act a condition is imposed that notwithstanding a stay of the operation of the Orders in this matter that the Applicant, CAMERON JAMES MANSELL, continue to be held in secure custody in the Watch-house of the Queensland Police Service at the Magistrates Court in Townsville until further consideration of this Application.
(5) That the Application be adjourned for further consideration at 10.00am on 1 June 2010 at the Federal Magistrates Court of Australia at Townsville.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE

BRG 519 of 2010

CAMERON JAMES MANSELL

Applicant

And

ACTING MAGISTRATE SCOTT LUXTON

Respondent

REASONS FOR JUDGMENT

1. This application is brought by Cameron James Mansell. For convenience I shall refer to him during these reasons as the applicant. The applicant seeks urgently, an order of review of a decision of Acting Magistrate Scott Luxton made in the Magistrates Court of Queensland yesterday, 25 May 2010. It is contended by the applicant that the application to review the decision of Acting Magistrate Scott Luxton relates to concerns with regard to an extradition warrant issued for the arrest of the applicant. It was contended in argument before Acting Magistrate Scott Luxton that the warrant and the extradition, which would flow from it, was in fact, an invalid document and that therefore, it was inappropriate for there to be any further proceedings, pursuant to that warrant.
2. The applicant says in the application that he is aggrieved by the decision because, on the basis of the decision of Acting Magistrate Scott Luxton, he would be extradited to Western Australia. Additionally, it is contended that the applicant is aggrieved because the interlocutory aspects of the application related to urgency.
3. The grounds of the application are relevant in relation to the determination of this matter.
4. The first of those grounds is that there was a denial of natural justice, in that the respondent, in his decision, referred to judicial decisions and other unsighted material that had not been referred to by either party. As a consequence of that, the applicant was not able to make submissions to the respondent addressing that material. That particular ground was not really pressed in relation to this matter, but it is clear that if the matter were to proceed further than today, that it would be one of the issues which would be required to be considered.
5. More particularly, however, it was contended under ground 2 that the decision of Acting Magistrate Scott Luxton involved errors of law. In particular, it was suggested they were constituted by:
   • (a) the respondent erring in finding that the omissions on the face of the warrant did not vitiate the warrant;
   • (b) that the respondent erred in finding that the failure to securely attach the prosecution notice to the warrant, or refer to it within the warrant, contrary to the Criminal Procedure Act 2004 (WA), did not vitiate the warrant;
   • (c) that the respondent erred in finding that the warrant was not vitiated by its issue based upon an unsworn affidavit.
6. The orders that were sought by the applicant are detailed in orders 1 through 5 within the application filed urgently today. Really only two significant matters were pressed and it is understandable in light of the urgent nature of the application that is brought. The first order that was pressed was that there should be an interlocutory order suspending the operation of the decision made by Acting Magistrate Luxton and, secondly, that an interlocutory order should issue staying any further proceedings in the Magistrates Court of Queensland, based upon the warrant issued in Western Australia. In particular, though it is not spelt out of course, it relates to the extradition proceedings which were, as I understand it, to proceed in the state courts in relation to this matter.
7. This Court has power under the provisions of the Administrative Decisions (Judicial Review) Act 1977 to make orders in relation to an administrative decision and to stay proceedings, in the event of an administrative decision being of a concern. Section 15A of the Administrative Decisions (Judicial Review) Act 1977, at least insofar as it is relevant to this application, is in these terms. Section 15A(1):
   • The making of an application to the Federal Magistrates Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but:
     • (a) the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions, (if any) as it or he or she thinks fit, suspend the operation of the decision; and
     • (b) the Federal Magistrates Court or a Federal Magistrate may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the decision.
8. Of course, that power relates to an administrative decision and in this respect it is contended that the exercise of the discretion of Acting Magistrate Scott Luxton was an administrative decision. I shall obviously turn further to that during these reasons.
9. Before proceeding further, however, a preliminary issue arose which needed to be considered. The fact is that the application that has been filed refers to the applicant and Acting Magistrate Scott Luxton. However, counsel appearing urgently on behalf of the Acting Magistrate indicated that it was inappropriate to proceed against Acting Magistrate Scott Luxton but that rather, the more appropriate course was to find a contradictor who was able to stand on behalf of Acting Magistrate Scott Luxton.
10. It was conceded on the part of the applicant that that was the proper course to follow and I am mindful of the decision of the High Court of Australia in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35 to 36 where, at the conclusion of their decision, the High Court made comment about the direct involvement of the Australian Broadcasting Tribunal in the proceedings. The Court said:
    • The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by doing so it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted.
11. The fact is, that it is quite inappropriate that Acting Magistrate Luxton should be named as a party to these proceedings. The proper course is for there to be an appropriate contradictor named and, as I understand the indication, at least given on the part of the applicant, it is now accepted that the proper contradictor would be the Queensland Police Service or perhaps, at least from my own consideration of the matter, the Minister for Justice in Queensland. In any event, that is a matter, no doubt, that will be the subject of further consideration by the legal representatives for the applicant.
12. Conceding that Acting Magistrate Luxton was not the appropriate party to be continuing in the proceedings, it was agreed by consent that leave should be given to Acting Magistrate Luxton to withdraw from any further attendance that might be required in relation to these proceedings, and it was also sought that an order should be made, in relation to ensuring that Acting Magistrate Luxton had the right to be heard, should any party to the proceedings seek an order for costs against Acting Magistrate Luxton.
13. I am not asked to make that order however, and I do not make that order, noting the specific indication given by counsel for the applicant, that under no circumstances was it considered appropriate that an order should be sought in relation to costs, in respect of these proceedings. Accordingly, once it is assessed who might be the proper contradictor to appear, in relation to the proceedings, there needs to be consideration of the course to be followed and, in fact, more particularly, the course that should be followed in relation to this application now.
14. The application for review is enabled pursuant to the provisions of section 5 of the Administrative Decisions (Judicial Review) Act. In particular, I was referred to section 5(1)(f) as being the basis upon which a review of an administrative decision, in this instance, could be brought. Section 5(1)(f) of the Act is in these terms:
    • A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
      • (f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
15. The argument, as I already indicated, that is put forward in relation to this matter, pursuant to ground 2 of the application, is that there were a number of errors of law in the decision made by Acting Magistrate Luxton and, more particularly, it is contended that it is an error of an administrative nature.
16. The administrative error relates to the provisions of the Service and Execution of Process Act 1992. I have been provided with a copy of the Act and, in particular, the relevant part – part 5 and specifically section 83. Section 83 of the Service and Execution of Process Act, headed, “Procedure after apprehension”, is significant, particularly subsection (10) of section 83. Section 83 goes through the process to be followed in relation to what is to follow the apprehension of a person, and the steps to be taken in that regard. They are to be brought before a magistrate of the state in which the person was apprehended, and certain steps are to be taken with regard to the production of a warrant. In fact, subsection (2) specifically says:
    • (2) The warrant or a copy of the warrant must be produced to the magistrate if it is available.
    • (3) If the warrant or a copy of the warrant is not produced, the magistrate may;
      • (a) order that the person be released; or
      • (b) adjourn the proceeding for such reasonable time as the magistrate specifies and remand the person on bail or in such custody as the magistrate specifies.
17. Subsection (5) then indicates that the total time of any adjournments, and they are cumulative, must not exceed five days. Significantly, however, section 83(10) says the following:
    • (10) The magistrate must order that the person be released if the magistrate is satisfied that the warrant is invalid.

It is that point that is argued strongly before this Court, in support of the determination, as to whether there has been a necessary failure on the part of the Acting Magistrate hearing the matter, to exercise his administrative decision in a proper manner. I understand, however, that this argument was also very strongly advocated before Acting Magistrate Luxton.

18. It is contended that the decision to be made - in other words, whether there is a valid or invalid warrant - is an administrative decision.
    I understand that Acting Magistrate Luxton gave reasons in relation to determining that the warrant relied upon, in relation to these proceedings, was a valid warrant. Certainly, I am not aware of what those reasons might be, and it may be that whether, in fact, it is a judicial decision or an administrative decision, is irrelevant because the decision was made on proper basis. However, at the present time, I do not know that to be the case. As I say, that will obviously flow from the reasons when they are made available.
19. It is important, however, that I be mindful and comment upon the concerns that were raised in relation to this matter. A number of points were argued with regard to both the arrest warrant and the form of affidavit which was relied upon in support of the arrest warrant. I do not intend, at length, to go through the concerns that were referred to there, but suffice it to say, that it was contended that there were a significant number of technical errors contained within the arrest warrant, including failures, for example, to include information as to the place that the applicant in these proceedings was to be delivered up to, nor was there attached to the arrest warrant certified copies of prosecution notice, or any other documentation relevant in relation to same.
20. More particularly – and I must say that it is troubling, at least to me, is that the affidavit, which is sought to be relied upon in support of the arrest warrant and, therefore, the extradition, is a document which is not sworn. The fact is that a document which is not sworn is simply a collection of words. It is not a basis upon which there can be reliance placed. In that regard, I was assisted particularly by the indications and reference given to the High Court of Australia in George v Rockett (1990) 170 CLR 104 (20 June 1990).
21. In that decision, consideration was given by seven Judges of the High Court as to issues arising pursuant to the provisions of section 679(b) of The Criminal Code (Q). Section 679(b) relates to the issue of a search warrant. It commences as follows:
    • If it appears to a justice on complaint on oath...
22. Then it goes on to detail what steps might, or might not necessarily be required to be considered by a justice in the issue of a warrant. What the High Court said in relation to what is required in relation to the issue of a warrant is the following. At paragraph 6:
    • 6. The opening words of s.679 - “If it appears to a justice” - impose on a justice to whom an application for search warrant is made the duty of satisfying himself that the conditions for the issue of the warrant are fulfilled. In T.V.W. Ltd. v. Robinson (1964) WAR 33, Negus J (at p 37) said:
      • “It is the duty of the justice before issuing ...a warrant, to satisfy himself that there are grounds for suspecting and grounds for believing the respective matters in s.711 of the Criminal Code and that those grounds are reasonable.”
    • When the justice is so satisfied and a warrant is issued, the warrant should express the justice’s satisfaction that there are reasonable grounds for the suspicion and belief.
23. A little later in their reasons the High Court said at paragraph 10:
    • 10. The requirement that a sworn complaint must ground the issue of a search warrant carries the implication that the grounds for the issue of the warrant cannot be made to appear to the issuing justice from statements made by an applicant otherwise than by complaint on oath. In Feather v. Rogers, at p 196, Simpson A.C.J. said in reference to a requirement that the facts be shown “on oath before a Justice”:
      • “The statements made before the information was sworn were apparently not made on oath. They were therefore immaterial.”
24. The High Court then goes on to say:
    • That is not to say that a justice before whom a complaint is sworn should abstain from questioning the complainant if the justice wishes to obtain some confirmation of what appears in the complaint. The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s.679. If that requirement is not satisfied, the information otherwise conveyed to the issuing justice is immaterial but, if that requirement is satisfied, the justice may seek confirmation by inquiry of the complainant.
25. As I say, on the face of it, the affidavit that is relied upon in support of the arrest warrant, in relation to the applicant in these proceedings, is simply words. It is not a basis upon which there could, at least on the face of it, be reliance placed by a justice so as to enable them to issue the warrant.
26. Similar arguments, as I understand it, were put before Acting Magistrate Luxton, and Acting Magistrate Luxton has given reasons in relation to why the failure to swear the affidavit relied upon in relation to the warrant, is not a basis upon which the warrant would be invalid.
27. It may be that Acting Magistrate Luxton fully appreciates the qualities that are required in that regard and, if that is so, then it is a proper basis for the decision to be made. But, unfortunately, I do not have those reasons in relation to the matter and it does give rise, to me, to a real concern as to, if this is an administrative decision, whether there has been a fundamental error of law, in relation to the making of that decision.
28. I was, quite properly by counsel for the applicant, referred also to the provisions of section 9A of the Administrative Decisions (Judicial Review) Act 1977. Section 9A, subsection (1) is in these terms:
    • (1) Subject to subsection (2), at any time when:
      • (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or
      • (b) an appeal arising out of such a prosecution is before any court
    • no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.
29. A related criminal justice process decision is defined in subsection (4) of section 9A. As relevant, in relation to this matter is concerned, the following should be noted:
    • “related criminal justice process decision”, in relation to an offence, means:
      • (a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:
        • (iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant.
30. What I am asked, on the part of the applicant to do here, is to distinguish this particular application and the decision of Acting Magistrate Luxton from a related criminal justice process decision. What is contended, on the part of the applicant, is that an administrative decision was made in relation to determining that the warrant was properly issued and that, therefore, it was able to be relied upon in relation to the extradition that occurs. There is no suggestion it is contended that there is a challenge to the warrant having issued by the justice in Western Australia, though, there is a challenge as to its validity. It is not, therefore, at least from the applicant’s perspective, a related criminal justice process decision.
31. I am certainly concerned as to that particular aspect of this matter because, if it is in fact, a related criminal justice process decision, then it is a matter which would preclude the authority of this Court to exercise a judicial review of an administrative decision. But in my assessment, that is, again, one of the matters that might be more properly the subject of further consideration a little later.
32. In that regard, and finally what I think is determinative of my position, in relation to this matter, is the fact that I am asked to make a stay.
33. I note that, in the High Court and Federal Court procedure and practice documentation produced by Butterworths Australia, there is reference at paragraph 160,175.40 to a stay of proceedings where an applicant is waiting for reasons for the decision. The reasons have been given in this matter but they have not yet been made available. What the learned writers of Butterworths say is the following:
    • The applicant must be able to point to a ground upon which the decision under review was in fact invalid, before a stay will be granted. The mere fact that reasons for the decision have been sought and that those reasons have not yet been given is not a sufficient ground for staying the operation of the decision. However, in a case of urgency, the court may grant a stay to permit presentation of an argument.
34. The bottom line in relation to this matter is, that if the decision of Acting Magistrate Luxton is an administrative decision - and, of course, as I have indicated I am not certain one way or the other as to whether that might be the case – then to fail to grant a stay, in relation to the matter would have the most dire consequences for the applicant. He is charged with a very serious offence. An offence which, no doubt, if convicted, would lead to a very significant period of imprisonment. One would think, that if there is comity between the various criminal codes, then a conviction for murder would carry with it a penalty of life imprisonment.
35. With that consequence comes, in my assessment at least, a requirement for there to be absolute impartiality and absolute procedural fairness in relation to all proceedings relating to the charges being brought. To not grant, in the short term, a stay of the orders would have, therefore, the most significant of consequences for the applicant. If the stay were not granted he would, no doubt, be extradited to Western Australia, and a successful review – sometime in the next few days or week – would be totally nugatory. It would have no benefit to the applicant in these proceedings.
36. In my assessment, therefore, whilst there may be a fresh warrant issued, and, if that fresh warrant were not to give rise to any invalidity, then the extradition can proceed. It may be that it was found that the decision made in relation to this matter is a judicial decision, or that the decision made by Acting Magistrate Luxton was an administrative decision, but without error, then the extradition could proceed. But until such time as that could be fully investigated and properly considered, the consequences for the applicant are dire. There are, in my view, greater considerations that must be looked at in relation to the legal process.

ORDERS DELIVERED:

37. I would ask, obviously, that the legal representatives for the applicant, noting the indication given that Acting Magistrate Luxton would abide by any order of this Court, convey to the Court and to Acting Magistrate Luxton the determination made at this time. I will direct that my reasons be published and made available as soon as possible.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Coker FM

Associate:

Date: 10 June 2010