Bennett v Government of the United Kingdom [2000] FCA 916 | Case summary

Judgment (5 paragraphs)

[1]

The applicant is not eligible for surrender to the United Kingdom in relation to a charge of fraud concerning a car. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

[2]

REASONS FOR JUDGMENT 1 The present proceeding has its origin in the seeking by the United Kingdom of the extradition of Mr Paul James Bennett from Australia for two offences of fraud under Scottish law. Subsequently, a New South Wales magistrate determined at the instance of the United Kingdom that Mr Bennett was eligible for surrender to it in relation to both of those offences. The magistrate accordingly ordered under subs 19(9) of the Extradition Act 1988 (Cth) ("the Act") that Mr Bennett be committed to prison to await a decision by the Commonwealth Attorney-General either to surrender him to the United Kingdom or to release him. 2 In the present proceeding, Mr Bennett has applied to this Court under subs 21(1) of the Act, which subsection provides for a "review" of the order made by the magistrate under subs 19(9) of the Act. Mr Bennett has of course (in effect) named the United Kingdom as a respondent to the proceeding. He has also named the magistrate as a respondent to the proceeding, but, not surprisingly, she has taken no active role in it. (Indeed, it may be that she should not even have been so named: compare Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 543-44 (Gummow J).) Subsection 21(6) of the Act provides relevantly that on an application of the present type this Court "shall have regard only to the material that was before the magistrate". Subsection 21(2) of the Act provides relevantly that this Court may either confirm the magistrate's order or quash it and direct the magistrate to order Mr Bennett's release. 3 The order of which review is sought by Mr Bennett was made by the magistrate at the conclusion of proceedings which she had conducted under subs 19(1) of the Act. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282, a Full Court of this Court (Lockhart, Gummow and Hill JJ), having referred to the fact that the ultimate issue to be decided by a magistrate in proceedings under subs 19(1) of the Act is whether a person in respect of whom an extradition request has been made is "eligible for surrender", then continued (at 303-04), "To determine that issue the magistrate will be required to determine the following constituent matters:

Extradition Act 1988 (Cth), ss 5, 7, 11, 19, 21, 34, 35(6)(d), 55(a) Extradition (Commonwealth Countries) Regulations (Cth), regs 3, 5, 6, Pt 1 of Schedule Extradition Act 1870 (UK) Criminal Procedure (Scotland) Act 1975 (UK), s 221 Crimes Act 1900 (NSW), ss 3A, 178BA, 179 Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 referred to Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed Republic of South Africa v Dutton (1997) 77 FCR 128 followed Rahardja v Republic of Indonesia [2000] FCA 639 referred to Ingram v Attorney-General for the Commonwealth [1980] 1 NSWLR 190 referred to Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 applied In the Estate of AH Theakston (1956) 74 WN (NSW) 113 referred to Wilson v Parry (1937) 13 LGR (NSW) 196 referred to Prabowo v Republic of Indonesia (1997) 74 FCR 599 referred to Ex parte Bennett; Re Cunningham (1967) 68 SR (NSW) 15 referred to Linhart v Elms (1988) 81 ALR 557 referred to McDade v United Kingdom [1999] FCA 1868 applied De Bruyn v Republic of South Africa [1999] FCA 1344 applied Kron (1995) 78 A Crim R 474 referred to Lipohar v The Queen (1999) 168 ALR 8 referred to Reg v Governor of Brixton Prison, Ex parte Gardner [1968] 2 QB 399 referred to Greene v The King (1949) 79 CLR 353 referred to R v Timperon (No 2) (1976) 15 SASR 1 referred to R v Gordon (1889) 23 QBD 354 referred to United States v Holt (1994) 49 FCR 501 applied Foster v Minister for Customs and Justice (1999) 164 ALR 357 referred to Foster v Senator Amanda Vanstone [1999] FCA 1447 referred to Pap[a]zoglou v Republic of the Philippines (1997) 74 FCR 108 referred to McDade v Attorney-General of the Commonwealth (FCA: RD Nicholson J, 1 May 1998, unreported) applied Dutton v Republic of South Africa (1999) 84 FCR 291 referred to Dutton v Republic of South Africa (1999) 162 ALR 625 referred to Dutton v Republic of South Africa (1999) 92 FCR 575 referred to Ujiie v Republic of Singapore (1996) 66 FCR 323 applied Wentworth v Rogers [1984] 2 NSWLR 422 referred to Prevato v The Governor, Metropolitan Remand Centre (1986) 8 FCR 358 distinguished Commonwealth of Australia v Riley (1984) 5 FCR 8 applied Winkler v DPP (1990) 25 FCR 79 applied R v Governor of Pentonville Prison, Ex p Kirby [1979] 1 WLR 541n referred to R v Stolpe (NSWCCA: Mahoney ACJ, Hunt CJ at CL and Barr J, 30 October 1996, unreported) applied Parsons v The Queen (1999) 195 CLR 619 referred to R v Bilick (1984) 36 SASR 321 approved Forrest v Kelly (1991) 32 FCR 558 referred to Aughterson Extradition: Australian Law and Procedure 1995 pp. 121-22 17(2) (reissue) Hals Laws (4th) p.110

Bennett v Government of the United Kingdom

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Judgment (5 paragraphs)

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